JESSIE JAMES MILTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jessie Milton appealed an order denying post-conviction relief, challenging his trial counsel's effectiveness for failing to call a witness and failing to object to prosecutorial comments. The Fifth District Court of Appeal affirmed the trial court's denial, finding Milton failed to allege the witness was available and that counsel's performance was neither deficient nor prejudicial.
The court held that Milton failed to state a facially sufficient claim because he did not allege the witness was available to testify, which is an element required to establish ineffective assistance for failing to call a witness. The court also held that counsel's failure to object to the prosecutor's comments was neither deficient performance nor prejudicial, as the comments did not undermine confidence in the trial outcome and were made in proper context.
[1] A post-conviction motion alleging ineffective assistance of counsel for failure to call a witness must allege that the witness was available to testify at trial.
[2] Failure to allege the availability of a witness at trial renders a claim of ineffective assistance of counsel facially insufficient.
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“To set forth a facially sufficient claim, a post-conviction motion must allege that the witness was available to testify.”
Establishes the pleading requirement for ineffective assistance claims based on failure to call a witness.
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Join FLexlaw to unlock all legal intelligenceMilton sought post-conviction relief based on two claims: (1) counsel's failure to call a witness at trial constituted ineffective assistance, and (2)…
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THOMPSON, J.
Jessie Milton appeals an order denying him post-conviction relief. We affirm.
Milton first contends that the trial court erred in summarily denying him relief based on his claim that counsel’s failure to call a witness was ineffective assistance. We disagree. To set forth a facially sufficient claim, a post-conviction motion must allege that the witness was available to testify. Edwards v. State, 859 So. 2d 588 (Fla. 4th DCA 2003); Nelson v. State, 816 So. 2d 694 (Fla. 5th DCA 2002), rev. granted, 837 So. 2d 411 (Fla.2003). In the instant case, Milton failed to allege or establish that the witness was available to testify. As this court reasoned in Nelson, a defendant must allege that the witness had been available to testify at trial because counsel’s failure to call an unavailable witness could not logically prejudice the outcome of a defendant’s trial. Id. at 696 (citing Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993)).
Next, Milton argues that the trial court erred in finding that counsel was not ineffective for failing to object to certain prosecutorial comments and failing to move for a mistrial. After a review of the record, we agree with the trial court that counsel’s failure to object to certain comments made by the prosecutor was neither deficient performance nor prejudicial to Milton. The cited comments were not directed at Milton, but were made in the context of explaining the officers’ questioning techniques during the taped interviews with Milton or in response to the defense’s closing arguments attacking the officer’s questioning techniques.
Additionally, the evidence supported the trial court’s finding that counsel did not object to every allegedly improper comment as a matter of strategy. See Brown v. State, 846 So. 2d 1114 (Fla.2003) (affirming denial of relief where prosecutorial comments did not undermine confidence of trial and defense counsel testified that he was being judicious with his objections in order to avoid antagonizing the jury and losing credibility). We agree that counsel’s performance was not deficient or prejudicial. Moreover, after reviewing the record and the prosecutor’s comments, we conclude that in light of Milton’s confession, even if the prosecutor’s comments were inappropriate, they were not so prejudicial as to vitiate the entire trial. See Chandler v. State, 702 So. 2d 186, 191 n. 5 (Fla.1997) (holding that the prosecutor’s comments about defendant and his counsel were “thoughtless and petty,” but were not so prejudicial as to vitiate the entire trial).
AFFIRMED.
GRIFFIN and TORPY, JJ., concur.
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Milton v. State, 897 So. 2d 1268 (Fla. 2005)…ying petitioner relief based upon his claim that counsel’s failure to call a witness was ineffective assistance. In accord with our decision in Nelson v. State, 875 So. 2d 579 (Fla.2004), we quash the decision of the district court, Milton v. State, 872 So. 2d 965 (Fla. 5th DCA 2004), with respect to its affirmance of the trial court’s summary denial of petitioner’s claim for relief. We remand the case to the district court and direct that the case be remanded to the trial court so that petitioner may be perm…
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Giblin v. State, 882 So. 2d 1109 (Fla. 5th DCA 2004)…itnesses that could have supported his claim of self-defense. The trial judge summarily denied Giblin’s motion on this ground because he failed to allege the witnesses would have been available to [*1111] testify at trial relying on Milton v. State, 872 So. 2d 965 (Fla. 5th DCA 2004). The trial court’s ruling was correct at that time. Accordingly we affirm the trial court’s summary denial of Giblin’s motion on all grounds except the one relating to failure of trial counsel to investigate defense witnesses. W…
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Chamberlain v. State, 880 So. 2d 796 (Fla. 5th DCA 2004)…m to be more credible. On appeal, the State relies on the fact that Chamberlain’s motion did not specify his son’s whereabouts or allege that his son would have been available to testify at trial, a requirement in this district. See Milton v. State, 872 So. 2d 965 (Fla. 5th DCA 2004). This requirement was recently upheld by the Florida Supreme Court in Nelson v. State, 875 So. 2d 579 (Fla.2004). [*798] In Nelson, the Florida Supreme Court explained the reason for this requirement: In a rule 3.850 motion, a d…
Authorities Cited
- Oba Chandler v. State, 702 So. 2d 186 (Fla. 1997)
- Brown v. State, 846 So. 2d 1114 (Fla. 2003)
- Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993)
- Nelson v. State, 816 So. 2d 694 (Fla. 5th DCA 2002)