EDDIE L. ASH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eddie Ash appealed a trial court order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The appellate court reversed, finding that Ash's two claims of ineffective assistance of counsel were facially sufficient and required an evidentiary hearing to determine whether counsel's conduct actually prejudiced his defense.
Yes. Both claims were facially sufficient. The first claim satisfied the requirement by setting forth the substance of the witness's testimony and how counsel's failure prejudiced Ash, without requiring the witness to be identified. The second claim was facially sufficient because Ash alleged affirmative misadvice about potential sentence length, not merely failure to inform about collateral consequences.
[1] A claim of ineffective assistance of counsel is facially sufficient when it alleges that counsel failed to call a witness who would have provided crucial testimony negati…
[2] A defendant is not required to identify a specific witness when asserting a claim that counsel was ineffective for failing to call a witness who would have provided excul…
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Join FLexlaw to unlock all legal intelligence“Appellant's first claim, that defense counsel was ineffective in failing to call a witness that would offer crucial testimony negating his guilt, is facially sufficient. Appellant set forth the substance of the testimony the witness would provide and how he was prejudiced by counsel's failure to present this testimony. It was not necessary for appellant to identify the witness.”
Establishes that facial sufficiency for ineffective assistance claims does not require identifying the specific witness by name, only describing the substance and exculpatory value of potential testimony
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Join FLexlaw to unlock all legal intelligenceAsh filed a motion for postconviction relief raising two claims of ineffective assistance of counsel: (1) defense counsel failed to call a witness who…
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PER CURIAM.
Appellant seeks review of a trial court order denying his motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, requesting postconviction relief. We reverse. Appellant raised two claims in his motion for postconviction relief. Appellant first asserted defense counsel was ineffective in failing to call a witness that would offer crucial testimony negating his guilt. Appellant also asserted defense counsel was ineffective based on misadvice regarding the consequences of going to trial. The trial judge denied relief, determining both claims were facially insufficient. After appellant filed his notice of appeal, this Court ordered the State to file an answer brief. Although not addressed in its brief, the State apparently concedes that the claims were facially sufficient. The state responded that it was impossible to determine whether or not appellant received ineffective assistance of counsel in the absence of a record established at an evidentiary hearing on these issues, and agreed remand for evidentiary hearing was appropriate.
Appellant’s first claim, that defense counsel was ineffective in failing to call a witness that would offer crucial testimony negating his guilt, is facially sufficient. Appellant set forth the substance of the testimony the witness would provide and how he was prejudiced by counsel’s failure to present this testimony. It was not necessary for appellant to identify the witness. See Gaskin v. State, 737 So. 2d 509 (Fla.1999); Barnes v. State, 757 So. 2d 1217 (Fla. 4th DCA 2000); Zonecol v. State, 740 So. 2d 55 (Fla. 3d DCA 1999); Morales v. State, 731 So. 2d 91 (Fla. 4th DCA 1999).
Appellant’s second claim, that defense counsel was ineffective based on mis-advice regarding the consequences of going to trial, was also facially sufficient. Contrary to the state’s argument below, appellant does not allege counsel failed to inform him regarding a collateral consequence. Appellant argues he was affirmatively misled as to the possible length of his sentence should he decline to accept a plea and proceed to trial. Appellant was not required to allege or prove that the trial judge would have actually accepted the plea arrangement offered by the state. See Cottle v. State, 733 So. 2d 963 (Fla.1999); Lewis v. State, 751 So. 2d 715 (Fla. 5th DCA 2000); Scurry v. State, 702 So. 2d 568 (Fla. 2d DCA 1997).
Accordingly, we reverse and remand for an evidentiary hearing.
REVERSED and REMANDED with directions.
BARFIELD, C.J., BOOTH and WOLF, JJ., CONCUR.
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Kasper v. State, 828 So. 2d 1047 (Fla. 1st DCA 2002)…ond-degree felony even though aggravated stalking under section 784.048(4) is a third-degree felony, and his maximum exposure was thus five years, rather than 15 years. See § 775.082(3)(c) and (d), Fla. Stat. (1999). [*1048] See, e.g., Ash v. State, 767 So. 2d 1260 (Fla. 1st DCA 2000) (holding that affirmative misadvice as to the length of an appellant’s sentence is deficient performance). Second, he showed that he was prejudiced by alleging that he would not have pled, but would have gone to trial, if not for…
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Smallwood v. State, 911 So. 2d 849 (Fla. 1st DCA 2005)…pellant’s claim is facially sufficient: he alleges his counsel proffered misadvice about the length of his sentence and he would not have pled but for counsel’s misadvice. See Brazeail v. State, 821 So. 2d 364, 368 (Fla. 1st DCA 2002); Ash v. State, 767 So. 2d 1260, 1261 (Fla. 1st DCA 2000). We, therefore, reverse the trial court’s summary denial of the appellant’s first claim and remand to address the claim on the merits or attach record portions conclusively refuting his claim. All other issues are affirmed…
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Bart A. Greenway v. State, 823 So. 2d 206 (Fla. 1st DCA 2002)…Mr. Gus-tafson, allegedly an eyewitness to the incident. The motion specified the substance of Mr. Gustafson’s testimony, how it was relevant, and the prejudice allegedly caused by defense counsel’s failure to adduce this evidence. See Ash v. State, 767 So. 2d 1260, 1261 (Fla. 1st DCA 2000); Greeson v. State, 729 So. 2d 397, 397 (Fla. 1st DCA 1998); see generally Highsmith v. State, 617 So. 2d 825, 826 (Fla. 1st DCA 1993). The motion further alleged that defense counsel was aware of the existence of this witne…
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
- Gaskin v. State, 737 So. 2d 509 (Fla. 1999)
- Cottle v. State, 733 So. 2d 963 (Fla. 1999)
- Lewis v. State, 751 So. 2d 715 (Fla. 5th DCA 2000)
- Morales v. State, 731 So. 2d 91 (Fla. 4th DCA 1999)
- Earnest Barnes v. State, 757 So. 2d 1217 (Fla. 4th DCA 2000)
- Scurry v. State, 702 So. 2d 568 (Fla. 2d DCA 1997)
- Zonecol v. State, 740 So. 2d 55 (Fla. 3d DCA 1999)