DAVID F. EVANS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Evans appealed the denial of his postconviction motion challenging his 80.8-month robbery conviction. The appellate court affirmed the trial court's denial of most claims but reversed on the issue of ineffective assistance of counsel regarding counsel's failure to cross-examine a state psychologist about testing irregularities in an insanity defense rebuttal.
The court held that trial counsel's failure to cross-examine the expert on the testing irregularity constituted ineffective assistance of counsel satisfying the prejudice prong of Strickland. A client's acquiescence in counsel's conduct does not insulate the lawyer's performance from judicial review in postconviction proceedings, particularly regarding cross-examination of expert witnesses.
[1] A client's acquiescence in trial counsel's conduct does not necessarily insulate the lawyer's performance from judicial review in a postconviction proceeding.
[2] Failure to cross-examine an expert witness on an aspect of a test that would undermine its dependability may satisfy the prejudice prong of ineffective assistance of coun…
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Join FLexlaw to unlock all legal intelligence“A client's acquiescence in trial counsel's conduct does not necessarily insulate the lawyer's performance from judicial review in a postconviction proceeding.”
Establishes that a client's agreement with counsel's strategy does not bar postconviction review of counsel's performance
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Join FLexlaw to unlock all legal intelligenceEvans was convicted of robbery with a firearm and possession of a VIN plate, receiving a sentence of 80.8 months. At trial, a state psychologist testi…
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PER CURIAM.
David Evans appeals the trial court’s summary denial of his postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850, challenging the judgment and sentence of 80.8 months for robbery1 with a firearm and possession of aVIN plate.2
We affirm without comment the trial court’s denial of all of Evans’ claims except for ground two, which pertains to his attorney’s failure to cross-examine a State expert witness about a certain test she relied upon in concluding that his client was not insane.
The witness, a psychologist, administered a test known as the MMPI-2 (Minnesota Multiple Personality Index) examination upon Evans. It is alleged in the motion that the wrong answer sheet, one which did not contain a sufficient number of corresponding answer spaces, was issued to Evans. It is further alleged that although this witness based her assessment of Evans, in part, upon this test, his lawyer never cross-examined her about this irregularity. Neither of these allegations appear controverted by the record.
The trial court denied the claim, finding that the transcript reflected that both Evans and his attorney conferred upon the conclusion of this witness’ testimony and stated that they desired no further cross-examination of her. The court ruled that Evans had an opportunity to raise this question but failed to do so and inferred that he should be precluded from now claiming this omission as a basis of post-conviction relief.
A client’s acquiescence in trial counsel’s conduct does not necessarily insulate the lawyer’s performance from judicial review in a postconviction proceeding. This principle especially applies to the area of cross-examination of an expert witness, which many regard as among the most challenging tasks faced by a trial attorney.
The MMPI-2 test was one of two relied upon by this witness, the only one offered by the State in rebuttal of Evans’ insanity defense. The reliability of the test results would have been critically diminished if Evans was not provided with the correct answer sheet. The failure of trial counsel to cross-examine this witness on an aspect of this test which would have undermined its dependability satisfies the prejudice prong required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
A trial court’s finding that defense action or inaction is the result of trial strategy will generally be disapproved if the decision is made without the benefit of an evidentiary hearing. See Gwisasola v. State, 667 So. 2d 248 (Fla. 1st DCA 1995). The failure of Evans’ attorney to pursue this issue on cross-examination, unrefuted by attachments to the record, warrants an evidentiary hearing.
Accordingly, we reverse the order of the trial court in part with instructions that an evidentiary hearing be conducted unless additional record attachments to a subsequent denial refute this facially sufficient claim. Affirmed in part, reversed in part, and remanded. , ,
BLUE, A.C.J., and GREEN and CASANUEYA, JJ., Concur. . § 812.13(b), Fla. Stal. (1995).
. § 319.33(d), Fla. Stat. (1995).
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Terrell v. State, 9 So. 3d 1284 (Fla. 4th DCA 2009)…l did not call a particular witness. See id. A trial court’s finding that defense action or inaction was the result of trial strategy will generally be disapproved if the decision is made without first holding an evidentiary hearing. Evans v. State, 737 So. 2d 1167, 1168 (Fla. 2d DCA 1999). The state argues that an evidentiary hearing on the defendant’s claims concerning his attorney’s failure to call witnesses was unnecessary because the transcript -of the colloquy conducted by the trial court showed that th…
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Pineda v. State, 805 So. 2d 116 (Fla. 4th DCA 2002)…blem and allowed him to proceed with his trial in jail attire. A client’s acquiescence to trial counsel’s conduct does not necessarily insulate the lawyer’s performance from judicial review in a [*118] post-conviction proceeding. See Evans v. State, 737 So. 2d 1167 (Fla. 2d DCA 1999). Ineffective representation is sufficiently alleged by a claim that counsel not only left his client’s clothes in his car, compelling him to wear jail garb, but also assured him that it was okay to attend his trial in jail attire.…
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Downs v. State, 227 So. 3d 694 (Fla. 5th DCA 2017)…ng that Downs failed to demonstrate prejudice. As an initial matter, “[a] client’s acquiescence in trial counsel’s conduct does not necessarily insulate the lawyer’s performance from judicial review in a post-conviction proceeding.” Evans v. State, 737 So. 2d 1167, 1168 (Fla. 2d DCA 1999). Thus, the postconviction court’s finding that Downs knew about counsel’s trial strategy and “nevertheless retained him for representation” is unavailing. In addition, the record attachments do not conclusively refute Downs’…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Guisasola v. State, 667 So. 2d 248 (Fla. 1st DCA 1995)