BART A. GREENWAY, 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.
Bart Greenway appeals the summary denial of his Rule 3.850 motion for postconviction relief based on ineffective assistance of counsel. The appellate court reversed in part, finding two claims facially sufficient to warrant an evidentiary hearing: counsel's failure to call an eyewitness and failure to present photographs and medical records supporting a lawful self-defense claim.
The court held that Greenway adequately alleged ineffective assistance of counsel with respect to the failure to call Gustafson as a witness and the failure to present photographs and medical records, as these claims specified the substance of the testimony/evidence, its relevance, and the resulting prejudice. The court reversed the summary denial of these two claims and remanded for the trial court to either attach record portions conclusively refuting them or hold an evidentiary hearing.
[1] A defendant may resist the use of excessive force in making an arrest, even if the arrest itself is lawful.
[2] A motion for postconviction relief alleging ineffective assistance of counsel is facially sufficient if it specifies the substance of testimony from a known, available ey…
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“While a defendant cannot use force to resist an arrest, he may resist the use of excessive force in making the arrest.”
Establishes that the self-defense claim based on resisting excessive force is a viable legal defense in Florida.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGreenway was convicted of resisting an officer with violence and causing bodily injury during the commission of a felony, arising from an altercation …
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 Facially Insufficient Claim cases and more on FLexlaw
PER CURIAM.
Bart A. Greenway appeals an order summarily denying without hearing his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse the order insofar as it summarily denies two of Mr. Greenway’s claims of ineffective assistance of counsel and remand for further proceedings consistent with this opinion. We otherwise affirm.
Mr. Greenway was convicted of resisting an officer with violence and causing bodily injury during the commission of a felony. The underlying felony for the charge of felony causing bodily injury was the charge of resisting with violence. See § 782.051(2), Fla. Stat. (1997). Mr. Green-way was charged in relation to an alterca tion he and his wife had with the police during a stop of his vehicle. A defense asserted at trial was that Mr. Greenway was acting in self-defense because he was resisting unlawful or excessive force employed by the police on him and his wife. See State v. Holley, 480 So. 2d 94, 96 (Fla.1985) (“[Wjhile a defendant cannot use force to resist an arrest, he may resist the use of excessive force in making the arrest.”); Langston v. State, 789 So. 2d 1024, 1029 (Fla. 1st DCA 2001).
In his motion for postconviction relief, Mr. Greenway claimed that defense counsel failed to investigate and prepare this defense adequately. He asserted that the defense should have presented additional evidence and called more witnesses in support of this defense. As the trial court properly concluded, most of his specific claims were facially insufficient. But we conclude he sufficiently alleged deficient performance and prejudice in failing to call Edwin Gustafson as a witness and failing to offer certain photographs and medical records.
The motion asserted that defense counsel was ineffective for not calling Mr. Gus-tafson, allegedly an eyewitness to the incident. The motion specified the substance of Mr. Gustafson’s testimony, how it was relevant, and the prejudice allegedly caused by defense counsel’s failure to adduce this evidence. See Ash v. State, 767 So. 2d 1260, 1261 (Fla. 1st DCA 2000); Greeson v. State, 729 So. 2d 397, 397 (Fla. 1st DCA 1998); see generally Highsmith v. State, 617 So. 2d 825, 826 (Fla. 1st DCA 1993). The motion further alleged that defense counsel was aware of the existence of this witness and that Mr. Gustafson was available to testify at trial. See Highsmith, 617 So. 2d at 826; Williamson v. State, 559 So. 2d 723, 724 (Fla. 1st DCA 1990). Therefore, the motion was facially sufficient on this point.
Similarly, the motion asserted that defense counsel was ineffective for not putting in evidence photographs of Mr. Green-way and his wife as well as their medical records reflecting treatment following this incident. He asserted that this evidence was relevant to show that the police used excessive force which he lawfully resisted. He alleged that this evidence would show how much force had been used against his wife and himself, and that defense counsel’s failure to adduce the evidence prejudiced him at trial. See Wright v. State, 646 So. 2d 811, 813 (Fla. 1st DCA 1994); Keller v. State, 551 So. 2d 1269, 1270 (Fla. 1st DCA 1989).
Mr. Greenway adequately alleged that defense counsel failed to prepare and present adequately a potentially viable defense to the jury in these particulars. Although defense counsel’s decisions regarding which evidence to present in support of the claim of lawful resistance may well have been tactical, such a finding should normally be made only after an evidentiary hearing. See Jackson v. State, 789 So. 2d 1218, 1220 (Fla. 1st DCA 2001); Hester v. State, 732 So. 2d 331, 332 (Fla. 1st DCA 1998); Rosemond v. State, 634 So. 2d 259, 260 (Fla. 1st DCA 1994). We therefore reverse the order insofar as it denied the two specific claims discussed above and remand for the trial court either to attach portions of the record conclusively refuting these claims or to hold an evidentiary hearing.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
BOOTH, BENTON, and VAN NORTWICK, JJ, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Spellers v. State, 993 So. 2d 1117 (Fla. 5th DCA 2008)…credibility). We further conclude that a determination of whether counsel’s failure to call Spellers’ mother as a witness was a tactical decision can only be made after an eviden-tiary hearing. See, e.g., Ford, 825 So. 2d at 358; Greenway v. State, 823 So. 2d 206 (Fla. 1st DCA 2002). REVERSED and REMANDED for an Evidentiary Hearing. SAWAYA and ORFINGER, JJ„. concur.…
-
Adams v. State, 834 So. 2d 302 (Fla. 1st DCA 2002)…ineffective assistance of counsel for failure to call a witness where the appellant sets forth the substance of the testimony the witness would provide and how he was prejudiced by counsel’s failure to present this testimony. See Greenway v. State, 823 So. 2d 206, 207 (Fla. 1st DCA 2002); Ash v. State, 767 So. 2d 1260, 1261 (Fla. 1st DCA 2000). A brief [*304] statement of the facts to which a witness would testify is sufficient for the substance of the witness’ testimony. Barnes v. State, 757 So. 2d 1217, 12…
Authorities Cited (12 total)
- Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993)
- Wilton James Langston v. State, 789 So. 2d 1024 (Fla. 1st DCA 2001)
- State v. Ernie Ray Holley, 480 So. 2d 94 (Fla. 1985)
- Hester v. State, 732 So. 2d 331 (Fla. 1st DCA 1998)
- Mitchell v. State, 789 So. 2d 1218 (Fla. 1st DCA 2001)
- Williamson v. State, 559 So. 2d 723 (Fla. 1st DCA 1990)
- Greeson v. State, 729 So. 2d 397 (Fla. 1st DCA 1998)
- Rosemond v. State, 634 So. 2d 259 (Fla. 1st DCA 1994)
- Wright v. State, 646 So. 2d 811 (Fla. 1st DCA 1994)
- Cullins v. State, 767 So. 2d 1260 (Fla. 1st DCA 2000)