BARRY STRINGER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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This appeal challenges the trial court's summary denial of a rule 3.850 motion for post-conviction relief based on ineffective assistance of counsel. The court reversed and remanded on the claim that defense counsel failed to call an alibi witness despite the defendant's request, finding the trial court erred by summarily denying this claim without an evidentiary hearing.
The trial court erred in summarily denying the alibi witness ineffectiveness claim. The court reversed and remanded for an evidentiary hearing or attachment of further record support. The court affirmed the trial court's denial of appellant's other ineffective assistance claims.
[1] A post-conviction motion claim alleging ineffective assistance of counsel for failing to call an alibi witness is not conclusively refuted if the exhibits attached to the…
[2] A defendant is entitled to relief for ineffective assistance of counsel when there is a reasonable probability that, but for counsel's deficient performance, the outcome…
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Join FLexlaw to unlock all legal intelligence“A defendant is entitled to relief on the basis of ineffective assistance of counsel where there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different.”
Establishes the legal standard for ineffective assistance of counsel claims under Strickland v. Washington
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with burglary and dealing in stolen property. Appellant informed his attorney prior to trial that his landlord could establish a…
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PER CURIAM.
We review the order denying appellant’s rule 3.850 motion for post-conviction relief and find that the trial court erred in summarily denying appellant’s motion. The second claim in appellant’s motion alleged the ineffectiveness of his defense counsel for failing to call an alibi witness. This claim was not conclusively refuted by the exhibits attached to the State’s response and expressly incorporated in the trial court’s order. Therefore, we reverse the order denying relief on this claim and remand this case to the trial court for an evidentiary hearing or attachment of further record support. We affirm the order denying the other claims of ineffective assistance of counsel raised in appellant’s motion.
Appellant was charged with one count of burglary and one count of dealing in stolen property. Appellant claims he informed his attorney prior to trial that his landlord could establish an alibi for him and that his attorney, despite her assurance that she would call him as a witness, failed to do so. Based on the extent of the record present ly before this court, the failure to call this alibi witness could have affected the outcome of this case. See Reid v. State, 682 So. 2d 194 (Fla. 4th DCA 1996). A defendant is entitled to relief on the basis of ineffective assistance of counsel where there is a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066-67, 80 L.Ed.2d 674 (1984).
On remand, the trial court is directed either to attach further record excerpts supporting its order of denial or to conduct an evidentiary hearing to confirm appellant advised counsel of his alibi defense, and, if so, why trial counsel failed to call the alleged alibi witness. If trial counsel’s performance was deficient, the trial court must then make a determination, based on a complete review of the trial transcript, whether there is a reasonable probability that counsel’s performance resulted in prejudice pursuant to the standard announced in Strickland.
STEVENSON, TAYLOR and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Alwin J. Jacobs v. State, 880 So. 2d 548 (Fla. 2004)…and call alibi witnesses”); Cohens v. State, 775 So. 2d 336, 337 (Fla. 2d DCA 2000) (finding that the trial court erred in finding the IAC alibi witness claim facially insufficient because a notice of alibi was filed in the case); Stringer v. State, 757 So. 2d 1226, 1226 (Fla. 4th DCA 2000) (remanding the case for the trial court to either hold a hearing or attach further record excerpts because the exhibits incorporated in the trial court’s order did not conclusively refute the IAC alibi witness claim); Reid…
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Gilbert v. State, 852 So. 2d 397 (Fla. 4th DCA 2003)…ast doubt on his guilt. He alleges that Russel would have testified that appellant was with him at another location from 10:00 p.m. to 6:00 a.m., when the offense occurred. See Eubanks v. State, 819 So. 2d 880 (Fla. 4th DCA 2002); Stringer v. State, 757 So. 2d 1226 (Fla. 4th DCA 2000). The order of summary denial is reversed as to the fourth ground for relief and remanded for either an evidentiary hearing or the trial court’s attachment of record portions conclusively refuting appellant’s fourth ground for r…
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Peter v. State, 844 So. 2d 699 (Fla. 4th DCA 2003)…redited his testimony and highlighted the failure to call the other family members to corroborate it. A claim that counsel failed to call a witness who could establish an alibi states a facially sufficient ground for relief. See Stringer v. State, 757 So. 2d 1226 (Fla. 4th DCA 2000). While the state asserted that the proposed witnesses’ testimony would have been cumulative to appellant’s own alibi testimony, the testimony of a witness should not be excluded as cumulative if doing so reduces the case to a cre…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Lopez v. Lopez, 682 So. 2d 194 (Fla. 3d DCA 1996)