PAUL MICHAEL NELSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Paul Nelson appealed the summary denial of his motion for post-conviction relief under Florida Rule 3.850, claiming prosecutorial misconduct and ineffective assistance of counsel. The Florida District Court of Appeal affirmed the trial court's denial, holding that Nelson's claim of suborned perjury was refuted by the record and his ineffective assistance claim was facially insufficient because it failed to allege witness availability.
The trial court properly denied the motion without a hearing. The claim of suborned perjury was refuted by the record because the witness's testimony was consistent with other evidence. The ineffective assistance claim was facially insufficient because Nelson failed to allege that the witnesses were available to testify at trial, which is a necessary element of such claims.
[1] A defendant is entitled to an evidentiary hearing on a motion for post-conviction relief unless the motion, files, and record conclusively show no relief is warranted or…
[2] A claim that a prosecutor suborned perjury is refuted by the record if the challenged testimony is consistent with other state witnesses and any internal disparity was no…
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Join FLexlaw to unlock all legal intelligence“A defendant is entitled to receive an evidentiary hearing on a motion for post-conviction relief unless (1) the motion, files, and record in the case conclusively show that no relief is warranted, or (2) the motion is legally insufficient.”
Establishes the standard for when an evidentiary hearing is required on post-conviction relief motions.
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Join FLexlaw to unlock all legal intelligenceNelson filed a motion for post-conviction relief claiming the prosecutor suborned perjured testimony during his trial and that his trial counsel was i…
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PALMER, J.
Paul Nelson appeals the trial court’s summary denial of his motion seeking post-conviction relief filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. Nelson contends that he should have received an evidentiary hearing on his claims that the prosecutor suborned perjury during his trial and that his trial counsel was ineffective for failing to call, interview, or investigate certain witnesses. We affirm.
A defendant is entitled to receive an evidentiary hearing on a motion for post-conviction relief unless (1) the motion, files, and record in the case conclusively show that no relief is warranted, or (2) the motion is legally insufficient. In instances where the trial court denies a claim for post-conviction relief without conducting an evidentiary hearing thereon, the appellate court must examine the claim to determine if it is legally sufficient and, if so, whether the claim is refuted by the record. Atwater v. State, 788 So. 2d 223, 229 (Fla.2001).
As for Nelson’s claim that the prosecutor suborned perjured during his trial, the trial court properly concluded that the evidence of record refuted this claim. Review of the transcript which was attached by the trial court to its order reveals that the witness’ testimony was entirely consistent with the testimony of the other State witnesses, and any internal disparity in her testimony was not shown to have been deliberately false or misleading. See Corveil v. State, 698 So. 2d 522, 524 (Fla.1997)(holding that trial court properly denied motion for post-conviction relief without a hearing where record demonstrated that challenged testimony was merely corroborative and irrelevant).
Concerning Nelson’s claim that he should have received an evidentiary hearing on the claim that his trial counsel was ineffective for failing to call, interview, or investigate certain witnesses at trial, the trial court correctly found that this claim was facially insufficient in that Nelson’s motion failed to allege that any of the witnesses were available for trial. In issuing its ruling, the trial court properly relied on the law expressed in Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993).
In Highsmith, the First District held that, in order to set forth a facially sufficient claim of ineffective assistance of counsel based upon counsel’s failure to call a witness, a post-conviction motion must allege that the witness was available to testify. This conclusion logically follows from the fact that a post conviction ineffective assistance of counsel claim which is based upon counsel’s failure to call witnesses must include “an explanation as to how the admission of this evidence prejudiced the outcome of the trial.” 617 So. 2d at 826. Counsel’s failure to call a witness who was unavailable to testify at trial could not logically prejudice the outcome of a defendant’s trial.
The Third and Fourth Districts have adopted and applied the same reasoning. See Catis v. State, 741 So. 2d 1140 (Fla. 4th DCA 1998), rev. denied, 735 So. 2d 1284 (Fla.1999); Puig v. State, 636 So. 2d 121 (Fla. 3d DCA 1994). In contrast, the Second District has held that a motion need not allege availability of a witness in order to be facially sufficient. See Odom v. State, 770 So. 2d 195 (Fla. 2d DCA 2000). However, in so ruling, the Odom court presented no reasoning to support its position. Instead, the court simply relied on the fact that its earlier case law setting forth the elements necessary for a facially sufficient motion did not require that an allegation be made that a witness was available to testify. We adopt the law as established in the First, Third, and Fourth Districts because we agree that trial counsel could not be ineffective for failing to call, interview or investigate a witness who was not available to testify at trial.
AFFIRMED.
THOMPSON, C.J., and ORFINGER, R.B., J., concur.
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Nelson v. State, 875 So. 2d 579 (Fla. 2004)…WELLS, J. We have for review Nelson v. State, 816 So. 2d 694 (Fla. 5th DCA 2002), which expressly and directly conflicts with the decision in Odom v. State, 770 So. 2d 195 (Fla. 2d DCA 2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. [*581] FACTS Petitioner Paul Michael Nelson (Nelson) was con…1 / 2
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Lebron v. State, 100 So. 3d 132 (Fla. 5th DCA 2012)…m fails because “in order to set forth a facially sufficient claim of ineffective assistance of counsel based upon counsel’s failure to call a witness, a post-conviction motion must allege that the witness was available to testify.” Nelson v. State, 816 So. 2d 694, 695 (Fla. 5th DCA 2002). Also, prejudice is inadequately pled and is not established. The court’s conclusion that the defendant failed to sufficiently allege witness availability is factually incorrect. In addition, the defendant sufficiently alle…
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State v. Lucas, 183 So. 3d 1027 (Fla. 2016)…lood spatter expert. Id. at 581 n. 1. The trial court in Nelson dismissed the claim as insufficient because the motion did not allege the witnesses, would have been available to testify at trial. Id. On appeal, the Fifth District in Nelson v. State, 816 So. 2d 694, 695-96 (Fla. 5th DCA 2002), affirmed and held that a claim of ineffective assistance for failing to call certain witnesses must allege that the witnesses would have been available for trial. The district court’s decision in Nelson did not address a…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Atwater v. State, 788 So. 2d 223 (Fla. 2001)
- Correll v. State, 698 So. 2d 522 (Fla. 1997)
- Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993)
- Odom v. State, 770 So. 2d 195 (Fla. 2d DCA 2000)
- Puig v. State, 636 So. 2d 121 (Fla. 3d DCA 1994)
- Catis v. State, 741 So. 2d 1140 (Fla. 4th DCA 1998)