JOSEPH MCMILLIAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed denial of two ineffective assistance claims but reversed and remanded one alibi witness claim for evidentiary hearing because the record did not clearly establish whether counsel's failure to call the witness was strategic or resulted from inadequate preparation.
When the record does not clearly show whether counsel's failure to call an alibi witness was a strategic decision or resulted from failure to secure attendance, an evidentiary hearing is required to determine ineffective assistance of counsel.
[1] When trial counsel's failure to call a listed alibi witness is not clearly shown to be a strategic decision or the result of reasonable efforts to secure attendance, an e…
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Join FLexlaw to unlock all legal intelligence“hearing is usually required to determine whether act or omission was a reasonable strategic choice”
Court citing Anthony v. State for the proposition that evidentiary hearings are necessary when the record does not clearly show whether counsel's conduct was strategic.
McMillian was convicted of robbery with a deadly weapon, aggravated battery on a person over 65, and burglary of a conveyance. He claimed his trial co…
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PER CURIAM.
Joseph McMillian appeals the denial of his post-conviction motion in which he raised three allegations of ineffective assistance of his trial counsel. We affirm the denial of two of the claims. The remaining one was not conclusively disproved by the record and therefore requires an evidentiary hearing.
McMillian was convicted of robbery with a deadly weapon, aggravated battery on a person over 65 years, and burglary of a conveyance. He complains that his attorney failed to present the testimony of alibi witness Cheryl Adams, who was listed as a defense witness. McMillian alleges that Ms. Adams would have testified that at the time of the crime, she saw him helping his sister move into her new apartment. If Ms. Adams had so testified, she would have confirmed McMillian’s sister’s testimony. While two other alibi witnesses testified at trial, neither one could be certain about when they had seen the appellant at his sister’s apartment. The state argues that counsel either made a strategic decision not to call this witness or took reasonable steps to secure her attendance at trial.
The record does not clearly support either conclusion, so a hearing is required. Anthony v. State, 660 So. 2d 374, 376 (Fla. 4th DCA 1995)(hearing is usually required to determine whether act or omission was a reasonable strategic choice).
We reverse the order denying the motion and remand for an evidentiary hearing on this allegation only.
At the hearing, McMillian will have the burden of demonstrating the likelihood that Ms. Adams’ testimony would have affected the verdict.
GUNTHER, POLEN and FARMER, JJ„ concur.
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Citator
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Adams Wiggins v. State, 790 So. 2d 1137 (Fla. 4th DCA 2001)…choice not to call- the witness due to his credibility problems. If counsel made a tactical decision to abandon the alibi defense, an evidentiary hearing is required to determine whether that was a reasonable strategic choice. McMillian v. State, 717 So. 2d 102 (Fla. 4th DCA 1998); Anthony v. State, 660 So. 2d 374 (Fla. 4th DCA 1995). We reverse the order denying the motion and remand for an evidentiary hearing on this allegation only. STONE, GROSS, and TAYLOR, JJ., concur.…
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Coleman v. State, 718 So. 2d 827 (Fla. 4th DCA 1998)…l witnesses if they may be able to east doubt on the movant’s guilt and the movant states their names and the substance of their testimony. In Jackson, however, there was no issue of cumulative testimony. We have also considered McMillian v. State, 717 So. 2d 102, 23 Fla. L. Weekly D1933 (Fla. 4th DCA 1998). There, this court reversed, and remanded for an eviden-tiary hearing, the summary denial of a motion alleging counsel’s ineffectiveness for failure to present an alibi witness whose testimony added to th…
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Washington v. State, 187 So. 3d 244 (Fla. 4th DCA 2016)…calling alibi witnesses were tactical decisions is best made after an evidentiary hearing unless the record conclusively refutes the allegations.”) (citations omitted); Wiggins v. State, 790 So. 2d 1137, 1138 (Fla. 4th DCA 2001); McMillian v. State, 717 So. 2d 102, 103 (Fla. 4th DCA 1998). Accordingly, we reverse and remand for an evidentiary hearing as to Subpart B of Ground One of appellant’s Second Amended Motion for Post-Conviction Relief. Affirmed in part, Reversed in part, and Remanded with direct…
Authorities Cited
- Anthony v. State, 660 So. 2d 374 (Fla. 4th DCA 1995)