WILLIS ENGLISH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willis English appealed the summary denial of his Rule 3.850 post-conviction relief motion, claiming his trial counsel failed to investigate and present an eyewitness who could have testified to his innocence in an aggravated battery case. The appellate court reversed, finding the claim of ineffective assistance of counsel stated sufficient grounds for relief and required either additional record evidence or an evidentiary hearing.
English stated a sufficient claim of deficient performance and prejudice to warrant relief. The trial court erred in summarily denying the motion without an evidentiary hearing or record attachments conclusively refuting the claim.
[1] A claim of ineffective assistance of counsel based on the attorney's failure to investigate or subpoena a known eyewitness is sufficient if the movant alleges the witness…
[2] A defendant's assertion that an attorney failed to investigate a crucial witness is not defeated by evidence that an investigator was unable to locate the witness at a si…
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“Certainly, defense counsel would be expected to subpoena a crucial witness for deposition or trial before concluding that the witness is unavailable just because he is not at home when the investigator comes calling.”
Establishes that a lawyer cannot dismiss a witness as unavailable without proper attempts to locate and subpoena them
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEnglish was convicted of aggravated battery. He claimed his trial attorney knew of an eyewitness, Willie White, who would have testified that English …
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PER CURIAM.
Appellant, Willis English, challenges the order summarily denying his rule 3.850 motion for post-conviction relief. We reverse and remand for record attachments which conclusively refute appellant’s claim or an evidentiary hearing.
Appellant argues that his attorney was made aware of an eyewitness to the crime, Willie White, who would have testified that appellant was not the assailant in an aggravated battery. Appellant further alleged that White was available to testify but that his attorney neither properly investigated White nor subpoenaed him for deposition or trial. This is a sufficient claim with regards to deficient performance. Cf. Catis v. State, 741 So. 2d 1140 (Fla. 4th DCA 1998)(holding claim that counsel failed to investígate witnesses insufficient since appellant failed to name witnesses, allege that they would have been available to testify, and specify content of their testimony), rev. denied, 735 So. 2d 1284 (Fla.1999).
We reject the State’s contention that appellant’s own assertions that his attorney sent an investigator to White’s home but was not able to catch him defeats appellant’s claim. Certainly, defense counsel would be expected to subpoena a crucial witness for deposition or trial before concluding that the witness is unavailable just because he is not at home when the investigator comes calling.
Further, appellant’s claims that the witness would have testified that the appellant was not the perpetrator and that this would have impeached the victim’s testimony (according to the motion, the victim was the sole witness at trial) were sufficient allegations of prejudice. As there was no evidentiary hearing in this case, it is improper to affirm the denial of relief based on a finding that counsel made a strategic decision. See Griggs v. State, 821 So. 2d 1139, 1140 (Fla. 4th DCA 2002). Accordingly, we reverse and remand for record attachments or an evidentiary hearing.1
STEVENSON, SHAHOOD and GROSS, JJ., concur. . The State attached exhibits to its response below that purportedly refuted the claim. The exhibits, however, do not conclusively refute the claim. Thus, an evidentiary hearing would be necessary if the trial court was not able to otherwise refute the claim with additional record attachments.
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Byrden v. State, 847 So. 2d 572 (Fla. 1st DCA 2003)…daughter, her testimony would have had a significant impact on the victim’s credibility, and resulted in a different outcome. Such allegations are legally sufficient. See, e.g., Terrero v. State, 839 So. 2d 873 (Fla. 3d DCA 2003); English v. State, 830 So. 2d 240 (Fla. 4th DCA 2002). Because the portions of the record attached to the order denying relief do not demonstrate conclusively that appellant is entitled to no relief, we are constrained to reverse. On remand, the trial court may again deny relief i…
Authorities Cited
- Catis v. State, 741 So. 2d 1140 (Fla. 4th DCA 1998)
- Tauric Griggs v. State, 821 So. 2d 1139 (Fla. 4th DCA 2002)