CHARLES O. DAVIS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant failed to allege specific facts demonstrating deficient performance or prejudice required for ineffective assistance of counsel.
Appellant challenged his conviction for aggravated battery, alleging ineffective assistance of counsel. The trial court summarily denied his motion.…
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THOMPSON, J.
Appellant, Charles O. Davis, Jr., appeals the summary denial of his rule 3.850 motion challenging his conviction and sentence for aggravated battery of a person 65 years or older. The conviction and sentence were affirmed in Davis v. State, 812 So. 2d 428 (Fla. 5th DCA 2002).
Davis contends that his trial counsel was ineffective. As explained in Jones v. State, 845 So. 2d 55, 65 (Fla.2003), to establish ineffective assistance of counsel, a defendant must demonstrate that counsel’s performance was deficient, because it fell below the objective standard of reasonableness based on prevailing norms, and that the defendant was prejudiced, as there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. To be entitled to an evidentiary hearing on a claim of ineffective assistance of counsel, a defendant must allege specific facts which are not conclusively rebutted by the record and which demonstrate a deficiency which prejudiced the defendant. Mere conclusory allegations are insufficient. Id.
We agree with the trial court that Davis failed to meet this standard and make the necessary allegations to show either a deficiency or prejudice. However, as to ground seven, in which Davis alleged that counsel failed to investigate two witnesses who could have testified about another possible suspect, we affirm the denial of this claim without prejudice to Davis’s filing a facially sufficient motion which includes the allegation that the witnesses in question were available to testify, if that is the case. See Blanca v. State, 830 So. 2d 260 (Fla. 5th DCA 2002).
AFFIRMED.
PETERSON and TORPY, JJ. concur.
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Williams v. State, 936 So. 2d 1215 (Fla. 5th DCA 2006)…PER CURIAM. The trial court’s order of dismissal is affirmed without prejudice to appellant filing a legally sufficient motion within 30 days of the date of issuance of the mandate. Davis v. State, 869 So. 2d 612 (Fla. 5th DCA 2004). AFFIRMED. PLEUS, C.J., TORPY and EVANDER, JJ., concur.…
Authorities Cited
- Jones v. State, 845 So. 2d 55 (Fla. 2003)
- Vucinich v. State, 830 So. 2d 260 (Fla. 5th DCA 2002)
- Blanca v. State, 830 So. 2d 260 (Fla. 5th DCA 2002)