CARLOS GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carlos Green appealed the summary denial of his postconviction ineffective assistance of counsel claims. The court affirmed denial of most claims but reversed as to two claims regarding failure to call witnesses supporting a self-defense claim and failure to investigate shell casings, remanding for proper evidentiary procedures.
The court affirmed the denial of ten claims without discussion but reversed denial of two claims. The trial court erred in summarily denying the claim regarding failure to call witnesses because the record portions attached did not conclusively refute the claim. Similarly, the court reversed on the shell casing investigation claim because attached record portions did not conclusively refute it, and findings of tactical choices require evidentiary hearings.
[1] A trial court must attach portions of the record that conclusively establish that the failure to call named witnesses would have been merely cumulative or of no benefit i…
[2] A trial court's finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing.
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Join FLexlaw to unlock all legal intelligence“A trial court must attach portions of the record that conclusively establish that the failure to call named witnesses would have been merely cumulative or of no benefit in light of the evidence presented at trial through other witnesses.”
Establishes the legal standard for summarily denying ineffective assistance claims regarding witness testimony
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Join FLexlaw to unlock all legal intelligenceCarlos Green was charged with second-degree murder and convicted by jury of manslaughter. He claimed self-defense. He raised twelve ineffective assist…
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[*1061] BLUE, Chief Judge.
Carlos Green appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Mr. Green raised twelve claims of ineffective assistance of counsel, all of which were denied. We conclude that all but two of the claims are without merit. We affirm the denial of claims one, two, and five through twelve without discussion. On the two remaining claims, we reverse.
Mr. Green was charged with second-degree murder and convicted by a jury of manslaughter. He claimed self-defense. One of his claims of ineffective assistance alleged that defense counsel failed to call several witnesses who would have supported his defense.
The trial court correctly found this claim to be facially sufficient. See Odom v. State, 770 So. 2d 195 (Fla. 2d DCA 2000). A trial court must attach portions of the record that conclusively establish that the failure to call named witnesses would have been merely cumulative or of no benefit in light of the evidence presented at trial through other witnesses. Id. at 197. Although portions of the record were attached, those portions do not refute this claim. A trial court’s finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing. See Sampson v. State, 751 So. 2d 602 (Fla. 2d DCA 1998); Comfort v. State, 597 So. 2d 944, 945 (Fla. 2d DCA 1992).
Therefore, on this claim we reverse. On remand, if the trial court determines that the claim should be summarily denied, it should attach the additional portions of the record that demonstrate conclusively that Mr. Green is not entitled to relief or conduct an evidentiary hearing. See Armstrong v. State, 806 So. 2d 547, 548 (Fla. 2d DCA 2001); Sampson, 751 So. 2d at 602.
Mr. Green also claimed ineffective assistance because defense counsel failed to investigate and test automatic shell casings found at the scene. He asserted the shell casings could provide exculpatory evidence that others were armed that night. He claimed this information would have assisted his defense of self-defense.
The trial court again failed to attach portions of the record that refute this claim. The attachments relate to State test results of gunshot residue, and a defense motion to compel State ballistics tests, experiments, or comparisons. These items show some evidence but not conclusive evidence to refute Mr. Green’s claim. Therefore, we reverse and remand for the trial court to reconsider the claim and either attach portions of the record that conclusively refute the claim or conduct an evidentiary hearing. See Armstrong, 806 So. 2d at 548; Easley v. State, 742 So. 2d 463 (Fla. 2d DCA 1999).
Affirmed in part, reversed in part, and remanded.
FULMER and DAVIS, JJ., Concur.
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Bulley v. State, 900 So. 2d 596 (Fla. 2d DCA 2004)…failed to attach to its order any portion of the record that refuted, Bulley’s claim. A determination that the failure of counsel to call witnesses was a tactical decision is generally inappropriate- without an eviden-tiary hearing. Green v. State, 827 So. 2d 1060, 1061 (Fla. 2d DCA 2002). We therefore reverse the summary denial of this claim and remand for the trial court to either conduct an' evidentiary hearing or provide record attachments that conclusively refute Bulley’s claim. Affirmed in part, rever…
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Patterson v. State, 845 So. 2d 311 (Fla. 2d DCA 2003)…t conclusively refute his claim. See id. In addition, the trial court concluded that defense counsel’s failure to call a witness for trial was tactical. Such a determination is generally inappropriate without an eviden-tiary hearing. Green v. State, 827 So. 2d 1060, 1061 (Fla. 2d DCA 2002). Accordingly, we reverse and remand for the trial court to either conduct an eviden-tiary hearing on this claim or provide record attachments that demonstrate that Patterson is not entitled to relief. Affirmed in part, r…
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Scottie White v. State, 884 So. 2d 279 (Fla. 2d DCA 2004)…al court denied this claim, concluding that counsel’s failure to call Blauvelt as a witness was a strategic decision. The trial court erred because such a determination is generally not appropriate without an evidentiary hearing. See Green v. State, 827 So. 2d 1060, 1061 (Fla. 2d DCA 2002). In addition, the record indicates that Blauvelt testified at her deposition that White was home with her at the time of the shooting. Based on the allegations and the record before us, we conclude that White’s claims were…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Odom v. State, 770 So. 2d 195 (Fla. 2d DCA 2000)
- Sampson v. State, 751 So. 2d 602 (Fla. 2d DCA 1998)
- Comfort v. State, 597 So. 2d 944 (Fla. 2d DCA 1992)
- Easley v. State, 742 So. 2d 463 (Fla. 2d DCA 1999)
- Armstrong v. State, 806 So. 2d 547 (Fla. 2d DCA 2001)