JOSEPH N. PERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Perry appealed the denial of his motion for postconviction relief raising eleven ineffective assistance of counsel claims. The court affirmed the trial court's decision on ten claims but reversed and remanded on Perry's claim that counsel failed to object to the prosecutor's improper closing argument referring to defense witnesses as a 'pack of liars.'
The court held that a claim of ineffective assistance of counsel based on counsel's failure to object to improper closing argument is cognizable in a postconviction motion for relief. The court further held that the prosecutor's remarks were improper, and because the trial court failed to attach portions of transcripts refuting Perry's claim, the case must be remanded for an evidentiary hearing.
[1] A claim of ineffective assistance of counsel for failing to object to a prosecutor's improper closing argument is cognizable in a motion for postconviction relief.
[2] A prosecutor's closing argument remark referring to defense witnesses as a "pack of liars" is improper.
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“A claim that counsel was ineffective for failing to object to remarks in a prosecutor's closing argument is cognizable in a motion for postconviction relief.”
Establishes that ineffective assistance claims for failure to object to closing argument need not be raised on direct appeal but may be raised in postconviction relief.
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Join FLexlaw to unlock all legal intelligencePerry was convicted at trial. During the prosecutor's closing argument, the prosecutor made remarks suggesting defense witnesses were all 'a pack of l…
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BLUE, Acting Chief Judge.
Joseph N. Perry appeals the order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Perry raises eleven claims in this motion. We affirm without discussion the trial court’s determination on all but one of those claims. We reverse that portion of the trial court’s order concerning Perry’s claim that he received ineffective assistance of counsel because counsel failed to object to the prosecutor’s improper closing argument, and we remand for further proceedings.
In his motion, Perry argued that counsel’s inaction at closing prejudiced him because the failure to timely object to the prosecutor’s remarks, including the phrase that the defense witnesses were all a pack of liars, waived appellate review of the issue. In its order, the trial court found that this allegation should have been raised in Perry’s direct appeal. Additionally, the court found that the remarks were proper comments on the evidence. We disagree with both findings. See Henderson v. State, 727 So. 2d 284 (Fla. 2d DCA 1999) (holding that a prosecutor’s remarks referring to defense witnesses as a “pack of liars” were improper, but not fundamental error; court unable to review on appeal because trial counsel failed to preserve error).
A claim that counsel was ineffective for failing to object to remarks in a prosecutor’s closing argument is cognizable in a motion for postconviction relief. See Eure v. State, 764 So. 2d 798, 801 (Fla. 2d DCA 2000); Ross v. State, 726 So. 2d 317, 318 (Fla. 2d DCA 1998). Moreover, it is improper argument for the prosecutor to suggest that the only way to believe the accused’s version of events is to disbelieve a witness’s testimony. See Clewis v. State, 605 So. 2d 974 (Fla. 3d DCA 1992).
Accordingly, we reverse and remand to the trial court for further proceedings. Because the attachments to the trial court’s order fail to refute Perry’s claim regarding trial counsel’s failure to object to improper closing argument, we reverse for an evidentiary hearing. See Goswick v. State, 658 So. 2d 1215 (Fla. 1st DCA 1995) (holding that reversal required where trial court did not attach portions of the transcripts to refute claim of ineffective assistance of trial counsel for failing to object to improper closing argument).
Affirmed in part, reversed in part, and remanded.
FULMER and STRINGER, JJ., concur.
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Dania Antwan Covington v. State, 842 So. 2d 170 (Fla. 3d DCA 2003)…ation to the jury to convict Gore if it found he did not tell the truth. Thus, it was a clearly impermissible argument. See Bass, 547 So. 2d at 682; cf. Craig v. State, 510 So. 2d 857, 865 (Fla.1987). 719 So. 2d at 1200-01; see also Perry v. State, 787 So. 2d 67, 68 (Fla. 2d DCA 2001); Riggins v. State, 757 So. 2d 567, 569 (Fla. 2d DCA 2000). Based on the foregoing, we conclude that the defense objections should have been sustained. The improper argument in Gore was more clear cut, because the prosecutor i…
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Nolan v. State, 794 So. 2d 639 (Fla. 2d DCA 2001)…2d 701, 703 (Fla.1978)). Thus, the fact that prosecutorial misconduct was raised as fundamental error on direct appeal does not preclude Mr. Nolan from raising this related issue as a matter of ineffective assistance of counsel. See Perry v. State, 787 So. 2d 67 at 68 (Fla. 2d DCA 2001) (holding ineffective assistance of counsel claim for failure to object to prosecutor’s comments cognizable in post-conviction motion since court unable to review on appeal because trial counsel failed to preserve error) (cit…
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Otneil Bolanos Calderon v. State, 840 So. 2d 427 (Fla. 2d DCA 2003)…roper closing argument. Therefore, we reverse for the trial court to attach the portions of the record that demonstrate conclusively that Mr. Calderon is not entitled to relief. Otherwise it should conduct an evidentiary hearing. See Perry v. State, 787 So. 2d 67, 68 (Fla. 2d DCA 2001); Rachel, 780 So. 2d at 193-94. This alleged error, when placed in context with Mr. Calderon’s other unrefuted claims, could very well have affected the outcome of the case. In his remaining claim, Mr. Calderon seeks a new tri…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clewis v. State, 605 So. 2d 974 (Fla. 3d DCA 1992)
- Ross v. State, 726 So. 2d 317 (Fla. 2d DCA 1998)
- Eure v. State, 764 So. 2d 798 (Fla. 2d DCA 2000)
- Henderson v. State, 727 So. 2d 284 (Fla. 2d DCA 1999)
- Wright v. Scott, 658 So. 2d 1215 (Fla. 1st DCA 1995)
- Goswick v. State, 658 So. 2d 1215 (Fla. 1st DCA 1995)