KENNETH R. GILBERT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the summary denial of the fourth ground for postconviction relief was improper because the allegations of ineffective assistance of counsel for failing to investigate and call an alibi witness were facially sufficient.
[1] A motion for postconviction relief is facially sufficient when it alleges that trial counsel was ineffective for failing to investigate and call an alibi witness whose te…
[2] A trial court must either hold an evidentiary hearing or attach record portions conclusively refuting a claim in a motion for postconviction relief if the claim is facial…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of burglary. His postconviction motion alleged ineffective assistance of counsel for failing to call an alibi witness who coul…
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PER CURIAM.
Kenneth R. Gilbert appeals an order summarily denying his rule 3.850 motion for postconviction relief and the order denying his motion for rehearing. We affirm without discussion as to appellant’s first three grounds for postconviction relief, but reverse the summary denial as to the fourth ground.
Following a jury trial, appellant was found guilty of burglary of an occupied structure. At trial, Eugene Gallina testified that he arrived for work at Tropical Shipping at 5:00 a.m. and saw a man walking around the back of the warehouse with a set of bolt cutters and a Snap-on toolbox. He looked suspicious, so Gallina walked over and asked who he was. When Gallina approached, the man ran out of the building, and Gallina could not catch up to him. On returning to the building, Gallina found a wallet on the floor. It contained appellant’s photo identification, which appeared to Gallina to be the same person he had just seen. At trial, however, Gallina was not certain that appellant was the man he had seen.
We find facially sufficient appellant’s fourth ground for relief, alleging that his trial counsel was ineffective for failing to investigate and call an alibi witness, Ce-phus Russel. According to the motion, appellant timely gave his counsel Russel’s name and where he could be located. Russel was willing and able to testify. Russel’s testimony could have exonerated him, or at least could have cast doubt on his guilt. He alleges that Russel would have testified that appellant was with him at another location from 10:00 p.m. to 6:00 a.m., when the offense occurred. See Eubanks v. State, 819 So. 2d 880 (Fla. 4th DCA 2002); Stringer v. State, 757 So. 2d 1226 (Fla. 4th DCA 2000).
The order of summary denial is reversed as to the fourth ground for relief and remanded for either an evidentiary hearing or the trial court’s attachment of record portions conclusively refuting appellant’s fourth ground for relief.
AFFIRMED in part, REVERSED in part, and REMANDED.
POLEN, TAYLOR and MAY, JJ., concur.
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Cited By
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Gilbert v. State, 910 So. 2d 319 (Fla. 4th DCA 2005)…Previously, this court reversed in part the trial court’s summary denial of Defendant’s post-conviction motion where Defendant claimed his trial counsel was ineffective for failing to investigate and call a named alibi witness. See Gilbert v. State, 852 So. 2d 397 (Fla. 4th DCA 2003). On remand, the trial court ordered the state to respond, and the state asserted that the ground was conclusively refuted by two exhibits from the record. In one, a transcript of a calendar call, Defendant insisted on proceeding…
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Carter v. State, 941 So. 2d 1261 (Fla. 4th DCA 2006)…tate properly concedes, and we agree, that Carter’s fourth claim is facially sufficient, requiring remand for either an evidentiary hearing or attachment of those portions of the record which conclusively refute Carter’s claim. See Gilbert v. State, 852 So. 2d 397 (Fla. 4th DCA 2003) (finding facially sufficient appellant’s claim that his trial counsel was ineffective for failing to investigate and call an alibi witness where appellant alleged that he timely gave his counsel the witness’s name and where he [*…
Authorities Cited
- Stringer v. State, 757 So. 2d 1226 (Fla. 4th DCA 2000)
- Eubanks v. State, 819 So. 2d 880 (Fla. 4th DCA 2002)