FREDERICK JEROME JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frederick Johnson appealed the denial of his Rule 3.850 postconviction motion claiming ineffective assistance of counsel. The court affirmed most claims but reversed as to Johnson's allegation that trial counsel failed to investigate and present alibi witnesses, finding that the trial court improperly relied on unsworn hearsay to summarily deny this facially sufficient claim.
The court reversed and remanded for an evidentiary hearing, holding that the narrative contained in the billing statement was inadmissible hearsay outside the official court record and could not be used to summarily refute Johnson's facially sufficient ineffective assistance claim.
[1] A claim of ineffective assistance of counsel based on the failure to investigate and call alibi witnesses is facially sufficient if the defendant alleges the substance of…
[2] A document that is not part of the official court record and contains unsworn hearsay cannot be used to summarily deny a facially sufficient claim of ineffective assistan…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“At best, the document establishes that Johnson could not identify alibi witnesses at the time the private investigators interviewed him. It does not establish that Johnson never informed his counsel of potential alibi witnesses at any other time.”
Establishes that the billing statement narrative was insufficient as a matter of logic to refute Johnson's claim that he had informed counsel of alibi witnesses at some point.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJohnson was convicted in 1997 of robbery with a firearm and grand theft. In his postconviction motion, Johnson identified potential alibi witnesses by…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Frederick Johnson appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. His motion attacked his 1997 conviction for robbery with a firearm and grand theft, alleging several instances of ineffective assistance of counsel. We affirm the trial court’s denial of all but one of these claims. We reverse as to Johnson’s claim his trial counsel was ineffective for failing to investigate and call alibi witnesses because the attachments to the trial court’s order do not refute this one facially sufficient claim.
In his motion, Johnson provided the names and addresses of several witnesses he contended would be able to place him somewhere else at the time of the crime. His motion contained the substance of what these witnesses’ testimony would have been had they been called .to testify. Johnson alleged that he told his lawyer about these witnesses, but his lawyer refused to investigate them and failed to call them at trial. He also alleged these witnesses were available to testify and had they testified, the outcome of his trial would have been different. These allegations set forth a facially sufficient claim of ineffective assistance of counsel. See Robinson v. State, 659 So. 2d 444 (Fla. 2d DCA 1995); Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993).
The trial court attached a document to its order it believed refuted Johnson’s claim. This document appears to be a part of a billing statement from an investigative firm hired by Johnson’s attorney. The document contains a short narrative stating two private investigators spoke with Johnson while he was in pretrial detention. According to the narrative, Johnson was unable to provide any names of potential alibi witnesses to the investigators at that time.
The trial court ruled this document showed that Johnson had not told his lawyer about any alibi witnesses at any time and, therefore, conclusively refuted Johnson’s claim. We disagree with this conclusion. At best, the document establishes that Johnson could not identify alibi witnesses at the time the private investigators interviewed him. It does not establish that Johnson never informed his counsel of potential alibi witnesses at any other time. See Heuton v. State, 659 So. 2d 480 (Fla. 2d DCA 1995).
Moreover, the narrative contained in the billing statement was not a part of the “motions, files and records” of this case. See Fla. R.Crim. P. 3.850(d). The facts contained in the narrative were never introduced into evidence. The narrative is not a part of a court-prepared document. Of even more concern, the narrative contains no information revealing who interviewed Johnson or who prepared the narrative. It is true that the billing statement was placed in the court file prior to Johnson filing his motion. Likewise, the billing statement and the narrative were not filed specifically to refute Johnson’s allegations; documents filed in this instance do not qualify as records that can be used to summarily deny a facially sufficient claim. See Cintron v. State, 504 So. 2d 795 (Fla. 2d DCA), appeal after remand, 508 So. 2d 1315 (Fla. 2d DCA 1987). However, the court was not relying upon the billing statement itself to refute Johnson’s claim; instead, it relied upon the unsworn hearsay contained in the narrative.
We find that, under the unique facts of this case, the narrative is dehors the official court record and cannot be used to refute Johnson’s claim. To hold otherwise and allow the court to rely on these anonymous assertions would have the effect of “permit[ting] a hearing without all of the attendant requisites of such hearing.” Sampson v. State, 158 So. 2d 771, 773 (Fla. 2d DCA 1963). The requisites of a hearing would, at a minimum, include an opportunity for Johnson to raise evidentiary objections or privileges and to inquire into the identity of the declarants. See Cintron, 508 So. 2d at 1316.
Because the attachments to the trial court’s order were insufficient to refute Johnson’s claim, we reverse and remand for an evidentiary hearing.
ALTENBERND, A.C.J., and BLUE and CASANUEVA, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993)
- Arthur v. Sampson, 158 So. 2d 771 (Fla. 2d DCA 1963)
- Cintron v. State, 508 So. 2d 1315 (Fla. 2d DCA 1987)
- Cintron v. State, 504 So. 2d 795 (Fla. 2d DCA 1987)
- Robinson v. State, 659 So. 2d 444 (Fla. 2d DCA 1995)
- Carter Dean Heuton v. State, 659 So. 2d 480 (Fla. 2d DCA 1995)