LOLITA BARTHEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lolita Barthel appealed the denial of her Rule 3.850 postconviction motion alleging ineffective assistance of counsel. The court affirmed the trial court's denial of all grounds except ground sixteen, which it reversed and remanded because controlling precedent changed during the appeal, requiring application of the new standard from Nelson v. State.
The court reversed the summary denial of ground sixteen and remanded because a change in controlling precedent during the appeal (Nelson v. State) established a new four-part test for ineffective assistance claims based on failure to call a witness, which the trial court had not applied.
[1] A defendant is entitled to the benefit of controlling law in effect at the time of appeal, even if that law changed during the pendency of the appeal.
[2] To allege a facially sufficient claim for ineffective assistance of counsel based on the failure to call a witness, the movant must identify the witness, state the substa…
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Join FLexlaw to unlock all legal intelligence“in order to allege an ineffective assistance of counsel claim for failing to call a witness, the movant must set forth four requirements: (1) the identity of the prospective witness; (2) the substance of the witness's testimony; (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial; and (4) an assertion that the witness was available to testify”
Establishes the new legal standard from Nelson v. State that must be applied to Barthel's ineffective assistance claim
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Join FLexlaw to unlock all legal intelligenceBarthel filed a postconviction motion raising twenty grounds for relief, with ground sixteen alleging that her trial counsel provided ineffective assi…
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WALLACE, Judge.
Lolita Barthel appeals a final order denying her postconviction motion for relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Asserting twenty grounds for relief, the motion was summarily denied in part and finally denied, after an evidentiary hearing. We affirm without comment the trial court’s denial of Barthel’s postconviction motion in all respects except for the summary denial of ground sixteen, which must be reversed and remanded in light of a change in controlling precedent during pendency of this appeal.
In ground sixteen, Barthel alleged that her trial counsel provided ineffective assistance because he did not call a potential alibi witness to testify at Barthel’s trial. In our original opinion, we reversed the postconviction court because it applied an incorrect formulation of the law to determine if Barthel presented a facially sufficient claim for relief. In doing so, we relied on our prior opinions in Neal v. State, 854 So. 2d 666, 669 (Fla. 2d DCA 2003), Odom v. State, 770 So. 2d 195, 197 (Fla. 2d DCA 2000), and Prieto v. State, 573 So. 2d 398, 899-400 (Fla. 2d DCA 1991).
After our original opinion issued but before issuance of the mandate pending the State’s motion for rehearing, our supreme court’s decision in Nelson v. State, 875 So. 2d 579 (Fla.2004), issued and became final. - The Nelson court disap proved Odom and held that in order to allege an ineffective assistance of counsel claim for failing to call a witness, the mov-ant must set forth four requirements: (1) the identity of the prospective witness; (2) the substance of the witness’s testimony; (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial; and (4) an assertion that the witness was available to testify. Id. at 582-83. Obviously, without the benefit of Nelson, the trial court did not apply this formulation of the law to analyze Barthel’s claim. • ‘ '
Because this appeal was in the “pipeline” at the time Nelson became final, Barthel is entitled to the benefit of the controlling law in Nelson in effect at the time of appeal. See Reed v. State, 565 So. 2d 708, 709 (Fla. 5th DCA 1990) (observing that the principle that the law in effect at the time of appeal should be applied extends to the pendency of motions for rehearing before issuance of the mandate); see also Winfield v. State, 503 So. 2d 333, 334 (Fla. 2d DCA 1986). Accordingly, we reverse the summary denial of ground sixteen and remand for further proceedings consistent with Nelson, including granting Barthel leave to amend ground sixteen within a specified time. See Nelson, 875 So. 2d at 583-84. If Barthel’s claim is facially insufficient or if the motion, files, and records in the case conclusively show that she is entitled to no relief, the claim may be summarily denied. Fla. R.Crim. P. 3.850(d).
We commend the ’ State for promptly informing us of controlling precedent.
Reversed and remanded.
CASANUEVA and COVINGTON, JJ., Concur.
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Citator
Cited By (12 total)
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Renny Armstrong v. State, 148 So. 3d 124 (Fla. 2d DCA 2014)…(“However, recent cases suggest an expansion of the ‘pipeline’ analysis to new law that applies to postconviction claims where the resolution of the postconviction claim was still pending when the new case was decided.”); see also Barthel v. State, 882 So. 2d 1054, 1055 (Fla. 2d DCA 2004) (“Because this appeal was in the ‘pipeline’ at the time Nelson [v. State, 875 So. 2d 579 (Fla.2004),] became final, Barthel is entitled to the benefit of the controlling law in Nelson in effect at the time of appeal.”). Mor…
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Odegaard v. State, 137 So. 3d 505 (Fla. 2d DCA 2014)…m Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), that would apply to a postconviction claim, to the appeal of a denial of a postconviction motion using a “pipeline” analysis. Castaño, 119 So. 3d at 1208. Barthel v. State, 882 So. 2d 1054, 1055 (Fla. 2d DCA 2004), applied new law from Nelson v. State, 875 So. 2d 579 (Fla.2004), regarding ineffective-assistance-of-counsel claims, to the appeal of a denial of a postconviction motion. But see Perez v. State, 120 So. 3d 49, 51 (Fla. 4th…
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Castano v. State, 119 So. 3d 1208 (Fla. 2012)…ely raised the same postconviction claim as the defendant in Padilla and the resolution of her claim was still pending at the time Padilla was decided — it is in effect a “pipeline” case for purposes of whether Padilla applies. Cf. Barthel v. State, 882 So. 2d 1054, 1055 (Fla. 2d DCA 2004)(applying this Court’s decision in Nelson v. State, 875 So. 2d 579 (Fla.2004)—which established new law regarding the requirements for an ineffective assistance of counsel claim for failing to call a witness — to the appeal f…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nelson v. State, 875 So. 2d 579 (Fla. 2004)
- Odom v. State, 770 So. 2d 195 (Fla. 2d DCA 2000)
- Am. Home Assurance Co. v. Rosen Bldg. Supplies, Inc., 854 So. 2d 666 (Fla. 3d DCA 2003)
- Prieto v. State, 573 So. 2d 398 (Fla. 2d DCA 1991)
- Reed v. State, 565 So. 2d 708 (Fla. 5th DCA 1990)
- Winfield v. State, 503 So. 2d 333 (Fla. 2d DCA 1986)