ALEX GAVILAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alex Gavilan appeals the summary denial of his Rule 3.850 post-conviction motion challenging his conviction for first-degree murder and robbery with a firearm on ineffective assistance of counsel grounds. The Florida Fifth District Court of Appeal affirms the denial, rejecting all four claims of ineffective counsel.
The court rejected all four ineffective assistance claims. An intoxication defense was inconsistent with the chosen defense of innocence and was a matter of trial strategy. No prejudice was shown from the implied testimony claim or the witness testimony about the gun. A pending federal investigation does not establish ineffective counsel, and any conflict of interest claim should have been raised on direct appeal.
[1] A defense of intoxication, which could negate specific intent, is inconsistent with and preempted by a defense of innocence.
[2] A claim of ineffective assistance of counsel based on the failure to develop an intoxication defense is without merit when the defense presented at trial was that the def…
Previewing 2 of 5 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“The defense of intoxication that could have negated proof of specific intent to commit the crimes was inconsistent with that defense. Choice of the better defense was counsel's choice and required trial strategy.”
Establishes that selection among alternative defenses is a matter of trial strategy and that an intoxication defense was properly rejected as inconsistent with the innocence defense actually pursued.
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Join FLexlaw to unlock all legal intelligenceGavilan was convicted of first-degree murder and robbery with a firearm. His trial defense was that he did not commit the offenses. Gavilan now claims…
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Gavilan appeals from the summary denial of his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Gavilan was convicted of first degree murder and robbery with a firearm. We affirmed his convictions and sentences. See Gavilan v. State, 708 So. 2d 283 (Fla. 5th DCA 1998). In this proceeding, Gavilan argues his trial counsel was ineffective for four reasons. We disagree and affirm.
First, Gavilan argues his trial counsel should have developed an intoxication defense and presented expert testimony to establish he could have been intoxicated at the time he committed the crimes. However, the defense presented at trial was that he did not commit the offenses. The defense of intoxication that could have negated proof of specific intent to commit the crimes was inconsistent with that defense. Choice of the better defense was counsel’s choice and required trial strategy. The intoxication defense was preempted by the defense that the defendant was innocent. See Rose v. State, 617 So. 2d 291 (Fla.1993).
Second, Gavilan argues his trial counsel was ineffective because he implied Gavilan would testify at trial about his drug use, when in fact, he did not do so. This claim is without merit. The intoxication defense was not developed as a central feature of the case and no prejudice was shown.
Third, Gavilan takes the position that his trial counsel was ineffective because he elicited testimony from a witness, Bryan Dubbelt, that Bryan had seen Gavilan hold the gun used in the crimes, on prior occasions. However, Gavilan fails to demonstrate how this testimony prejudiced his trial.
Fourth, Gavilan asserts his trial counsel was prejudiced in handling his case because at the time of the trial, his attorney was under investigation for federal medicare fraud. Being subjected to possible future federal prosecution is not a sufficient basis to show trial counsel was ineffective. Further, the claim that the defendant’s counsel had a conflict of interest should have been made or could have been made, on direct appeal. See Koon v. Dug-ger, 619 So. 2d 246 (Fla.1993).
AFFIRMED.
COBB and SAWAYA, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Koon v. Dugger, 619 So. 2d 246 (Fla. 1993)
- Milo A. Rose v. State, 617 So. 2d 291 (Fla. 1993)