ANDRE AVERY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Andre Avery appeals the summary denial of his Rule 3.850 postconviction motion alleging ineffective assistance of counsel. The court found merit in one ground—that trial counsel failed to present evidence supporting a defense theory raised in opening statement—and reversed on that claim while affirming the summary denial of other claims.
Trial counsel's conduct—arguing the defense in opening and presenting no evidence to support it during trial—constitutes ineffective assistance of counsel. The court found that Avery adequately stated a claim that counsel was ineffective for failing to interview and call the arresting officer as a witness, as the missing money could have raised doubt affecting the jury's verdict.
[1] Arguing a defense in opening statement and presenting no evidence to support it during trial constitutes ineffective assistance of counsel.
[2] A claim of ineffective assistance of counsel may be adequately stated by alleging counsel failed to interview and/or call a witness.
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“Arguing this defense in opening, and presenting no evidence to support the defense during the trial, constitutes ineffective assistance of counsel.”
Establishes the core holding that counsel's failure to present evidence supporting a theory raised in opening statement constitutes ineffective assistance
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Join FLexlaw to unlock all legal intelligenceAvery was convicted of selling cocaine for twenty dollars to an undercover officer. He was arrested minutes after the alleged sale. In opening stateme…
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[*1167] PER CURIAM.
Andre Avery appeals the summary denial of a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Only one ground asserted by Avery has merit, and on that ground we reverse. The order of the trial court is affirmed in all other respects.
Avery was convicted of sale of cocaine and sentenced to fifteen years in prison. He was arrested after selling a twenty-dollar piece of rock cocaine to an undercover officer. Avery’s trial counsel, in opening statement, asserted that Avery did not have a twenty-dollar bill in his possession when arrested minutes after the sale, and that the absence' of the bill when he was arrested showed that Avery was not the individual who sold the cocaine to the officer. Avery asserts that his trial counsel was ineffective because, after raising this issue, he did not call the arresting officer or any witness to testify in support of this defense, nor did he elicit the information in cross-examination.
Arguing this defense in opening, and presenting no evidence to support the defense during the trial, constitutes ineffective assistance of counsel. Avery’s attorney may have had a valid reason for his conduct, or the facts may be different from Avery’s allegations, but this cannot be determined from the order of the trial court.
In addition, Avery has adequately stated a claim of ineffective assistance of counsel for not interviewing and/or calling a witness. See Marrow v. State, 715 So. 2d 1075 (Fla. 1st DCA 1998). Although Avery does not provide the name of the arresting officer, he does provide enough specificity so that his counsel could have located the arresting officer and interviewed him to determine whether Avery’s contention is correct. Given Avery’s version of the facts, which are undisputed by any attachments to the order denying-relief, the missing money could have raised enough doubt in the mind of the jury to have affected the outcome of the trial.
The trial court is directed to reconsider the motion. Although it is unlikely that this issue can be resolved without an evidentiary hearing, the court should attach those portions of the record that conclusively refute Avery’s allegations if it again summarily denies the claim.
Affirmed in part, reversed in part, and remanded.
CAMPBELL, A.C.J., and FULMER and STRINGER, JJ., Concur.
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Honors v. State, 752 So. 2d 1234 (Fla. 2d DCA 2000)…A 1991) (reversing summary denial of motion for postconviction relief). Furthermore, “arguing [a] defense in opening, and presenting no evidence to support the defense during the trial, constitutes ineffective assistance of counsel.” Avery v. State, 737 So. 2d 1166, 1167 (Fla. 2d DCA 1999) (reversing summary denial of motion for postconviction relief). In this case, defense counsel failed to secure the attendance of an exculpatory witness in a circumstantial evidence case. Her testimony, had it been offered,…
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State v. Dougan, 202 So. 3d 363 (Fla. 2016)…victim sold drugs, or that one of the victim’s acquaintances were involved in the murder. Deficient performance of counsel arises when counsel argues a defense in opening and presents no evidence to support the defense during trial. Avery v. State, 737 So. 2d 1166, 1167 (Fla. 2d DCA 1999); see also Harris v. Reed, 894 F. 2d 871, 879 (7th Cir.1990) (explaining that counsel “primed the jury” to hear evidence, failed to present it, and “the jury likely concluded that counsel could not live up [to] the claims mad…
Authorities Cited
- Marrow v. State, 715 So. 2d 1075 (Fla. 1st DCA 1998)