VICTOR LOPEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Victor Lopez appeals the summary denial of his ineffective assistance of counsel claim, arguing that trial counsel failed to present evidence of his disabling ankle injury that would have impeached witness identification evidence in his first-degree murder conviction. The court vacates the summary denial and remands for an evidentiary hearing on this specific issue, finding the claim legally sufficient to warrant a hearing.
Trial counsel's failure to present evidence of a known physical impairment when identification evidence was questionable and counsel was aware of the impairment constitutes a legally sufficient claim of ineffective assistance to warrant an evidentiary hearing; such a failure cannot be justified as a strategic decision without a hearing.
[1] A defendant's claim of ineffective assistance of counsel based on trial counsel's failure to present evidence of a disabling physical impairment, when such impairment cou…
[2] Failure to present evidence of a defendant's physical impairment, which could have weakened witness identification of the perpetrator, may constitute ineffective assistan…
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“Identification of the perpetrator was an important feature of the trial and due to his obvious disability, Lopez claims that the witnesses to the crime should have noticed a limp or use of a cane by him if he was the alleged perpetrator.”
Establishes that the disability was relevant and material to impeaching eyewitness identification evidence
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLopez was convicted of first-degree murder based primarily on witness identification testimony. Lopez had a disabling ankle injury that caused him to …
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PER CURIAM.
Victor Lopez appeals the summary denial of his claim that he received ineffective assistance of counsel at trial which resulted in his conviction for first degree murder. The crux of Lopez’s claim raised in his Rule 3.850 motion under the Florida Rules of Criminal Procedure was that trial counsel failed to present evidence of Lopez’s disabling ankle injury that existed at the time of the crime and which often caused him to walk with a cane. Indeed, there was no mention of this disability during trial.
Lopez claims that he discussed his disability with his trial attorney, but the attorney failed to consider it in his defense. Lopez attached to his 3.850 motion a copy of a social security report confirming that he suffered from the disability; however, the report was not available at trial.
Identification of the perpetrator was an important feature of the trial and due to his obvious disability, Lopez claims that the witnesses to the crime should have noticed a limp or use of a cane by him if he was the alleged perpetrator. Lopez’s attorney focused on discrediting the wit nesses’ identification of the defendant. If Lopez had a discernable limp, that fact should have strengthened the attempt to impeach one of the witnesses who testified that he saw Lopez run away from the scene after shooting the victim.
In Hatten v. State, 698 So. 2d 899 (Fla. 5th DCA 1997), this court reversed the summary denial of a Rule 3.850 motion which alleged that the defendant had supplied the names of witnesses who would impeach the victim’s identification testimony, as well as the name of an alibi witness. In reversing, the court revealed that the only evidence connecting the defendant to the robbery was the victim’s identification and concluded that the potential exculpatory testimony may have changed the outcome. Likewise, an evidentiary hearing on Lopez’s 3.850 motion is required in the instant case. The record establishes that the only evidence connecting the defendant to the crime was the identification of Lopez by two witnesses, one of which was questionable and the other one failed to mention a limp.
Defense counsel’s knowledge of Lopez’s physical impairment in light of the questionable identification of Lopez as the alleged perpetrator of the crime by the witnesses at trial, together with the social security report verifying an impairment, is legally sufficient to raise an issue of ineffective assistance. Knowing that such an impairment existed but failing to present evidence to impeach the questionable identification cannot be justified as a strategic decision without an evidentiary hearing on Lopez’s 3.850 motion. See, e.g., Hall v. State, 754 So. 2d 70 (Fla. 4th DCA 2000); Soloman v. State, 741 So. 2d 1211 (Fla. 5th DCA 1999).
The summary denial of the 3.850 motion is vacated as to this issue only and we remand for an evidentiary hearing. We reject all of the other issues raised by Lopez and affirm the trial court’s summary denial of those.
AFFIRMED IN PART; ORDER VACATED IN PART; REMANDED.
PETERSON, SAWAYA and PLEUS, JJ., concur.
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Burkell v. State, 169 So. 3d 256 (Fla. 4th DCA 2015)…l limitations with his right hand, left wrist, and [*258] shoulder, all of which were verifiable through medical records. His allegations are facially sufficient to state a prima facie claim for ineffective assistance of counsel. See Lopez v. State, 773 So. 2d 1267, 1268 (Fla. 5th DCA 2000). On appeal from a summary denial of a rule 3.850 motion, this Court must reverse “unless the [postconviction] record shows conclusively that the appellant is entitled to no relief.” Fla. R. App. P. 9.141(b)(2)(D). When sum…
Authorities Cited
- Hatten v. State, 698 So. 2d 899 (Fla. 5th DCA 1997)
- Soloman v. State, 741 So. 2d 1211 (Fla. 5th DCA 1999)
- Hall v. State, 754 So. 2d 70 (Fla. 4th DCA 2000)