ANTHONY COUSINO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Anthony Cousino appeals the summary denial of his motion for post-conviction relief alleging ineffective assistance of counsel regarding his guilty plea to burglary. The Fourth District reverses and remands, finding his claims of ineffective assistance and involuntary plea legally and factually sufficient.
The court held that Cousino's claims of ineffective assistance of counsel during the plea process and involuntary plea are legally and factually sufficient to warrant reversal and remand, as he adequately alleged a reasonable probability that without counsel's errors he would not have pleaded guilty and would have insisted on trial.
[1] To demonstrate ineffective assistance of counsel, a movant must establish that counsel's performance was deficient and that the deficient performance prejudiced the defen…
[2] The prejudice prong of the Strickland test for ineffective assistance of counsel in the plea context is satisfied by an allegation that there is a reasonable probability…
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“To demonstrate ineffective assistance of trial counsel, a movant must establish that (1) counsel made errors so serious that counsel is not functioning as counsel guaranteed by the sixth amendment; and that (2) the deficient performance of counsel prejudiced the defense.”
States the governing two-part Strickland test for ineffective assistance of counsel claims.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCousino pled nolo contendere to burglary of a residence with intent to commit assault and received two years community control. He claimed a substitut…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Strickland Standard cases and more on FLexlaw
PER CURIAM.
Appellant Anthony Cousino appeals from a final order summarily denying his motion for post-conviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure.
Appellant pled nolo contendere to burglary of a residence with intent to commit an assault, and was adjudicated guilty and placed on two years of community control. He did not appeal. He filed the subject motion for post-conviction relief alleging ineffective assistance of trial counsel for failing to advise him of possible defenses to burglary, and for failing to advise him that he could plead to burglary or that there was a lesser included offense of misdemeanor trespass to the charge. He said that lack of intent to commit an assault was a defense which could have been raised on his behalf and that it was supported by an affidavit of the victim, a copy of which he attached. He also alleged that a stand-in or substitute assistant public defender appeared in court for him but did not ask him about the facts of his case, possible defenses, or discuss discovery matters with him prior to entry of his plea. He alleged that he was led to believe that he had no option of speaking with his originally assigned lawyer before deciding whether to plead. He added an allegation that his pleas were involuntary as a result of the ineffective assistance of counsel.
The State filed a response arguing the insufficiency of the claims in the trial court. It also attached a copy of the victim’s deposition transcript detailing the burglary and battery in an attempt to refute the statements she made in her affidavit filed in support of the motion for post-conviction relief. In addition, it attached a copy of the transcript of the testimony of the victim’s friend who admitted she did not witness the assault or attempted assault, but only heard an account from the victim.
The trial court summarily denied the motion based on the State’s response and attachments.
To demonstrate ineffective assistance of trial counsel, a movant must establish that (1) counsel made errors so serious that counsel is not functioning as counsel guaranteed by the sixth amendment; and that (2) the deficient performance of counsel prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This test has been extended to allegations of ineffective assistance of counsel arising out of the plea process. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). However, in such cases, the “prejudice prong” of the Strickland test is satisfied by an allegation “that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Id. at 59, 106 S.Ct. 366. It is not necessary to allege, in addition, that a defense existed to the charge. See Worden v. State, 688 So. 2d 958 (Fla. 4th DCA 1997); Mason v. State, 742 So. 2d 370 (Fla. 1st DCA 1999). We would note apparent conflict with the third and fifth districts on this latter point. See, e.g., Siegel v. State, 586 So. 2d 1341 (Fla. 5th DCA 1991); Diaz v. State, 534 So. 2d 817 (Fla. 3d DCA 1988).
We find appellant’s claims of ineffective assistance of trial counsel resulting in his entry of the pleas, and of involuntary or coerced pleas, to 'be legally and factually sufficient. We reverse and remand for attachment of portions of the record which conclusively refute those claims, or for an evidentiary hearing thereon.
REVERSED and REMANDED.
POLEN, TAYLOR and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
-
Grosvenor v. State, 874 So. 2d 1176 (Fla. 2004)…uld have likely resulted in either an acquittal, or a more favorable sentence following a conviction of the charged offense or of a lesser included offense. I conclude that this is the correct analysis. I would not approve either Cousino v. State, 770 So. 2d 1258 (Fla. 4th DCA 2000), or Mason v. State, 742 So. 2d 370 (Fla. 1st DCA 1999). Cousino has no analysis of this issue but merely adopts the view of the First District. The lineage of the First District’s decision on this issue is traced to Price v. Stat…1 / 2
-
Young v. State, 789 So. 2d 1160 (Fla. 5th DCA 2001)…nt claims ineffective assistance in connection with a plea of no contest or guilty, the defendant must allege that he had a viable defense, which Young has not done. See Siegel v. State, 586 So. 2d 1341 (Fla. 5th DCA 1991); but see Cousino v. State, 770 So. 2d 1258 (Fla. 4th DCA 2000)(allegation defendant would not have entered plea but for counsel’s omission sufficient to show prejudice and allegation that there was a viable defense is not required); Mason v. State, 742 So. 2d 370 (Fla. 1st DCA 1999)(same).…
-
Tecoy Marquis Campbell v. State, 139 So. 3d 490 (Fla. 2d DCA 2014)…8, 243-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969))). Nevertheless, this claim is facially insufficient because Campbell did not allege that he was prejudiced by counsel’s failure to advise him of all of the rights he was waiving. See Cousino v. State, 770 So. 2d 1258, 1260 (Fla. 4th DCA 2000) (noting that to establish prejudice from counsel’s ineffectiveness during the plea process, a postconviction movant must allege that there is a reasonable probability that but for counsel’s ineffectiveness, he would have in…
Previewing 3 of 11 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)
- Hill v. Lockhart, 474 U.S. 52 (U.S. 1985)
- Siegel v. State, 586 So. 2d 1341 (Fla. 5th DCA 1991)
- Mason v. State, 742 So. 2d 370 (Fla. 1st DCA 1999)
- Tesheira v. LEE, 688 So. 2d 958 (Fla. 3d DCA 1997)
- Diaz v. State, 534 So. 2d 817 (Fla. 3d DCA 1988)
- Stewart v. Stewart, 534 So. 2d 817 (Fla. 3d DCA 1988)