ALWIN J. JACOBS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Alwin Jacobs appealed the denial of his motion for post-conviction relief claiming ineffective assistance of counsel and other grounds for reversal. The Florida appellate court affirmed the denial, finding his ineffective assistance claims facially insufficient under Strickland v. Washington.
The court affirmed the denial of the post-conviction motion because Jacobs' ineffective assistance claims were facially insufficient. The failure to call alibi witnesses constituted sound tactical judgment rather than ineffectiveness, particularly where overwhelming eyewitness evidence and physical evidence contradicted the witnesses' proposed testimony.
[1] To succeed on a claim of ineffective assistance of counsel, a defendant must demonstrate both deficient performance and prejudice, overcoming a presumption that counsel's…
[2] A motion alleging ineffective assistance of counsel for failure to investigate or call witnesses must identify the witnesses, the expected testimony, and explain how the…
Previewing 2 of 6 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“in order to succeed on a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a showing of deficient performance and prejudice”
Establishes the controlling legal standard 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 intelligenceJacobs was convicted of burglary of an unoccupied dwelling. Eyewitness testimony placed him at the crime scene, and he was found within two blocks of …
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PER CURIAM.
Alwin Jerome Jacobs (“defendant”) appeals the denial of his motion for post-conviction relief raising eight alleged grounds for reversal, including that his trial counsel was ineffective. The record conclusively reflects the defendant’s claims lack merit and therefore we affirm the order below.
It is well established that in order to succeed on a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a showing of deficient performance and prejudice. It is the defendant’s burden to overcome the strong presumption that counsel’s conduct was within the range of reasonable professional assistance, and the defendant can only meet this burden by showing specific omissions or overt acts that are substantial and serious, which result in prejudice. See Strickland v. Washington, 466 U.S. at 695, 104 S.Ct. 2052; Knight v. State, 394 So. 2d 997 (Fla.1981). The defendant in this case has failed to meet that burden.
Addressing the specific concerns raised by the dissent, we note that in order for counsel to be ineffective for failure to investigate and interview witnesses, a facially sufficient motion must include the identity of the alleged witness, the content of the witness’ expected testimony, and an explanation as to how the omission of this evidence prejudiced the outcome of the trial. See Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993). Defense counsel is not ineffective for failing to call witnesses who allegedly would have provided exculpating testimony, where there was ample evidence contradicting the testimony the witness would have given. See Cooley v. State, 642 So. 2d 108 (Fla. 3d DCA 1994). Absent extraordinary circumstances, failure of counsel to call a witness is not a ground for collateral attack. See Brookins v. State, 174 So. 2d 578 (Fla. 3d DCA 1965).
The defendant’s claim that counsel was ineffective for failing to call two proposed alibi witnesses at trial is facially insufficient. Although the defendant claims these witnesses would have testified he was in their home at the time of the crime, other eyewitness testimony placed the defendant at the scene of the crime and there was overwhelming evidence of the defendant’s burglary of the unoccupied dwelling. We agree with the State that the failure to call these witnesses where there was an abundance of evidence contradicting their testimony constituted a sound tactical decision and not ineffectiveness of counsel. See Jones v. State, 747 So. 2d 982 (Fla. 3d DCA 1999), quashed in part on other grounds, 759 So. 2d 681 (Fla.2000).
Under Rule 3.850, a defendant is entitled to an evidentiary hearing unless the motion and record conclusively show the defendant is not entitled to relief. See Harich v. State, 484 So. 2d 1239, 1240 (Fla.1986). Since the defendant’s motion is facially insufficient, no error has been shown in the trial court’s summary denial. See State v. Pelham, 737 So. 2d 572 (Fla. 1st DCA 1999)(affirming summary denial of ineffective assistance claim as to alibi witnesses since arguments were facially insufficient). Accordingly, no evidentiary hearing is required and the order below is affirmed in all respects.1
Affirmed.
GERSTEN AND SHEVIN, JJ„ concur. . We commend the trial judge for his detailed order in considering the defendant’s numerous claims. The trial court noted in finding the motion facially insufficient that: "Given the overwhelming evidence against the Defendant, consisting of an eyewitness identifying the Defendant at the scene of the crime and at trial and the Defendant being found within two blocks of the crime scene, the outcome of the trial would not have been altered by the proposed witnesses testimony even assuming the witnesses would have testified as the Defendant alleges.”
COPE, J.
(concurring in part and dissenting in part).
I would reverse the order denying post-conviction relief in part, and remand for an evidentiary hearing on the claim of defendant-appellant Jacobs that his trial counsel was ineffective.
The record reflects that counsel had filed a notice of alibi listing two alibi witnesses by name and address. Defendant alleged that the witnesses “were prepared to testify on behalf of the Defendant.” Motion for Postconviction Relief, at 8. Defendant says the witnesses would have testified he was in their home at the time of the crime. However, the alibi witnesses were not called to testify at trial.
Defendant contends that he would have testified at trial that he was at the home of the two alibi witnesses at the time of the crime. However, he says that counsel advised him that if he testified, the details of his prior record could be placed before the jury. In reality, the State would only be able to bring out the number of the defendant’s prior convictions, but not the details. See § 90.610, Fla. Stat. (1997); Charles W. Ehrhardt, Florida Evidence § 610.5 (2001).
“On appeal from the denial of relief [without an evidentiary hearing], unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.” Fla. R.App. P. 9.141(b)(2)(D).
In my view, the record does not conclusively refute the defendant’s claim. The identification in this case was by a single witness who had never seen defendant before. We cannot say on this record what the effect would have been had the alibi witnesses, and the defendant, testified. Defendant’s allegations are sufficient to call for an evidentiary hearing on his motion.
I concur with the affirmance of the denial of relief on the defendant’s other points.
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Alwin J. Jacobs v. State, 880 So. 2d 548 (Fla. 2004)…PER CURIAM. We have for review Jacobs v. State, 800 So. 2d 322 (Fla. 3d DCA 2001), based on conflict with the decision in Smith v. State, 481 So. 2d 988 (Fla. 5th DCA 1986). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We quash Jacobs, and hold that the district court erred in affirming the trial co…1 / 3
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Kenon v. State, 855 So. 2d 654 (Fla. 1st DCA 2003)…rookins v. State, 174 So. 2d 578 (Fla. 3d DCA 1965). Where an uncalled witness could have been significantly impeached through contradictory evidence, a court will not label counsel ineffective for failing' to call that witness. See Jacobs v. State, 800 So. 2d 322 (Fla. 3d DCA 2001); Cooley v. State, 642 So. 2d 108 (Fla. 3d DCA 1994). Courts have found “extraordinary circumstances” in very limited situations. For instance, courts have identified such circumstances where there is no “corroborating evidence of…
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Taylor v. State, 823 So. 2d 263 (Fla. 3d DCA 2002)…PER CURIAM. Defendant appeals from the denial of his motion for postconviction relief. Based upon the trial court’s thorough and well-reasoned order, we affirm. See Jacobs v. State, 800 So. 2d 322, 323 (Fla. 3d DCA 2001) (holding that “[Djefense counsel is not ineffective for failing to call witnesses who allegedly would have provided exculpating testimony, where there was ample evidence contradicting the testimony the witness would have give…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Harich v. State, 484 So. 2d 1239 (Fla. 1986)
- Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993)
- Brookins v. State, 174 So. 2d 578 (Fla. 3d DCA 1965)
- Pelham v. State, 737 So. 2d 572 (Fla. 1st DCA 1999)
- Cooley v. State, 642 So. 2d 108 (Fla. 3d DCA 1994)
- Jones v. State, 747 So. 2d 982 (Fla. 3d DCA 1999)
- Jones v. State, 759 So. 2d 681 (Fla. 2000)