WILLIE J. WALKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Walker appeals the summary denial of his rule 3.850 motion claiming ineffective assistance of counsel. The appellate court affirms the dismissal of two grounds for lack of demonstrated prejudice but reverses on four grounds relating to specific counsel deficiencies and remands for an evidentiary hearing.
The court affirms denial of grounds one and three due to insufficient demonstration of prejudice, but reverses denial of grounds two, four, five, and six as legally sufficient claims requiring either evidentiary hearing or record attachments conclusively refuting them.
[1] An appellate court must reverse the summary denial of a postconviction relief motion unless the record conclusively shows the appellant is entitled to no relief.
[2] Ineffective assistance of counsel may be found where counsel advises a defendant not to testify, and the defendant's proposed testimony would have been the only evidence…
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“issues which could have been raised on direct appeal cannot be couched in terms of ineffective assistance of counsel to avoid the rule that postconviction proceedings cannot serve as a second appeal. That principle, however, does not apply when there is a specific accusation directed toward counsel's performance.”
Establishes the exception allowing ineffective assistance claims for specific counsel performance even when general issues could have been raised on direct appeal.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWalker was convicted and sought postconviction relief via rule 3.850 motion alleging ineffective assistance of counsel on six grounds: (1) unspecified…
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[*855] PER CURIAM.
Defendant, Willie J. Walker, appeals the summary denial of his motion filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, which claims ineffective assistance of his trial counsel. We affirm in part and reverse in part.
The trial judge denied Defendant’s motion, holding that the reasons given for the claimed ineffective assistance could and should have been raised on direct appeal. We note that in Cherry v. State, 659 So. 2d 1069 (Fla.1995), the Florida Supreme Court held that issues which could have been raised on direct appeal cannot be couched in terms of ineffective assistance of counsel to avoid the rule that postconviction proceedings cannot serve as a second appeal. That principle, however, does not apply when there is a specific accusation directed toward counsel’s performance. See Knight v. State, 710 So. 2d 648 (Fla. 2d DCA 1998).
The State concedes that Defendant has stated facially sufficient claims that his counsel was ineffective for failing to challenge a juror who knew the State’s key witness (ground four), for failing to investigate another suspect and impeach that suspect’s alibi (ground five), and for misadvising Defendant as to the consequences of testifying (ground six). In addition, Defendant’s claim that counsel was ineffective for failing to object to the sufficiency of the evidence presented as to the value of the stolen items supporting the conviction for grand theft (ground two) is legally sufficient and not refuted by any attachments.
However, we agree with the State that Defendant’s first and third grounds are legally insufficient because Defendant has failed to demonstrate prejudice as a result of counsel’s performance. See Teffeteller v. Dugger, 734 So. 2d 1009 (Fla.1999) (claim of ineffective assistance of counsel is only sufficient to require an evidentiary hearing when defendant alleges specific facts which are not conclusively refuted by the record and which demonstrate a deficiency in performance which prejudiced the defendant).
Therefore, we affirm the trial court’s order denying grounds one and three. We reverse the trial court’s order denying grounds two, four, five and six and remand this case to the trial court to either attach portions of the record conclusively refuting these claims or hold an evidentiary hearing.
AFFIRMED IN PART; REVERSED IN PART.
THOMPSON, C.J., GRIFFIN and SAWAYA, JJ., concur.
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Clark v. State, 853 So. 2d 471 (Fla. 2d DCA 2003)…sis for seeking postconviction relief. Counsel’s failure to preserve an objection to the sufficiency of the evidence is a ground for postconviction relief under rule 3.850. Ellington v. State, 841 So. 2d 646, 647 (Fla. 2d DCA 2003); Walker v. State, 765 So. 2d 854, 855 (Fla. 5th DCA 2000). Clark’s argument that the record reflects insufficient evidence to support the second grand theft is based on Clark’s assertion that the perpetrator of the grand theft did not' actually cash the check in question, but was…
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LeBRON v. State, 885 So. 2d 448 (Fla. 5th DCA 2004)…was ineffective for failing to strike a juror who allegedly stated that LeBron “must be guilty of something, if the State accused him of a crime” and that “a defendant is presumed guilty, and should have to prove his innocence.” In Walker v. State, 765 So. 2d 854 (Fla. 5th DCA 2000), which involved analogous facts, this court determined that the defendant’s claim was facially sufficient when it alleged that trial counsel failed to challenge a juror who allegedly knew the state’s key witness. The alleged fact…
Authorities Cited
- Cherry v. State, 659 So. 2d 1069 (Fla. 1995)
- Teffeteller v. Dugger, 734 So. 2d 1009 (Fla. 1999)
- Knight v. State, 710 So. 2d 648 (Fla. 2d DCA 1998)