JAMES C. BULLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Bulley challenged the summary denial of his post-conviction motion claiming ineffective assistance of counsel for trial counsel's failure to investigate and call defense witnesses. The appellate court reversed the denial of his first claim, holding that a facially sufficient claim for ineffective assistance requires an evidentiary hearing or record attachments conclusively refuting the claim, rather than summary denial based on tactical decision-making.
The court held that a facially sufficient claim of ineffective assistance of counsel for failure to call witnesses entitles the defendant to an evidentiary hearing unless the record conclusively refutes the claim. Summary denial based on a characterization of the failure as a tactical decision is generally inappropriate without an evidentiary hearing.
[1] A trial court must hold an evidentiary hearing on a motion for postconviction relief alleging ineffective assistance of counsel for failure to investigate or call witness…
[2] A trial court errs by summarily denying a motion for postconviction relief based on trial counsel's alleged failure to call witnesses by concluding the decision was tacti…
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Join FLexlaw to unlock all legal intelligence“If a defendant's motion for postconviction relief presents a facially sufficient claim for ineffective assistance of counsel for failure to call witnesses, a defendant is entitled to an evidentiary hearing unless the record conclusively refutes his claim.”
Establishes the standard for reviewing post-conviction motions claiming ineffective assistance for failure to call witnesses
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Join FLexlaw to unlock all legal intelligenceOn April 16, 1998, Bulley was convicted of burglary of a dwelling, kidnapping, and sexual battery and sentenced as a habitual felony offender to fifty…
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[*597] PER CURIAM.
James C. Bulley challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse as to his first claim, and we affirm without comment as to his remaining two claims.
On April 16, 1998, Bulley was convicted of burglary of a dwelling, kidnaping, and sexual battery. He was sentenced as a habitual felony offender to fifty years in prison for the kidnaping and sexual battery and to thirty years in prison for the burglary. This court affirmed his convictions and sentences. See Bulley v. State, 780 So. 2d 67 (Fla. 2d DCA 2000) (table decision).
Bulley now contends that his trial counsel was ineffective in failing to adequately investigate, prepare, and call crucial defense witnesses at trial. He believes that a proper investigation would have impeached the reputations for truth and veracity of several of the witnesses. In his motion, Bulley identified the witnesses, provided what their testimony would have been, stated that they were available to testify, and alleged that he was prejudiced by their absence at trial. This constitutes a facially sufficient claim under Nelson v. State, 875 So. 2d 579 (Fla.2004). Nevertheless, the trial court denied relief because “as admitted by the Defendant, his attorney clearly considered calling these witnesses and decided it would not be a good strategy.”. The trial court determined that counsel’s failure to call the witness was a tactical decision and stated that it would not “second-guess tactical decisions made by trial counsel.” It declined an evidentiary hearing and did not provide for appellate review the portions of the record that could refute Bulley’s claim.
The failure to call witnesses can constitute ineffective assistance of counsel if the witnesses may have been able to cast doubt on the defendant’s guilt. See Sorgman v. State, 549 So. 2d 686, 687 (Fla. 1st DCA 1989). If a defendant’s motion for postconviction relief presents a facially sufficient claim for ineffective assistance of counsel for failure to call witnesses, a defendant is entitled to an evidentiary hearing unless the record conclusively refutes his claim. See Ford v. State, 825 So. 2d 358 (Fla.2002). Here, Bulley alleged a facially sufficient claim, and the trial court failed to attach to its order any portion of the record that refuted, Bulley’s claim. A determination that the failure of counsel to call witnesses was a tactical decision is generally inappropriate-without an evidentiary hearing. Green v. State, 827 So. 2d 1060, 1061 (Fla. 2d DCA 2002).
We therefore reverse the summary denial of this claim and remand for the trial court to either conduct an' evidentiary hearing or provide record attachments that conclusively refute Bulley’s claim.
Affirmed in part, reversed in part, and remanded.
SALCINES, CANADY, and VILLANTI, JJ., Concur.
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Meus v. State, 968 So. 2d 706 (Fla. 2d DCA 2007)…ected standard. If potential witnesses— available to testify at trial—may have been able to cast doubt on the defendant’s guilt, the failure to investigate and call them at trial can constitute ineffective assistance of counsel. See Bulley v. State, 900 So. 2d 596, 597 (Fla. 2d DCA 2004). In a case of this magnitude and complexity, trial counsel should have contacted every known witness at the scene of the crash to see if he or she had any exculpatory information. See Brown v. State, 892 So. 2d 1119, 1121-22…
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Spellers v. State, 993 So. 2d 1117 (Fla. 5th DCA 2008)…nted to the jury.” The failure to call a witness can constitute ineffective assistance of counsel if the witness may have been able to cast doubt on the defendant’s guilt. Ford v. State, 825 So. 2d 358, 360-361 (Fla.2002); see also Bulley v. State, 900 So. 2d 596, 597 (Fla. 2d DCA 2004). If a motion presents a facially sufficient claim of ineffective assistance of counsel for failure to call a witness, the movant is entitled to an evi-dentiary hearing unless the motion is conclusively refuted by the record o…
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Smith v. State, 185 So. 3d 585 (Fla. 2d DCA 2016)…rsing summary denial of postconviction motion, where record did not conclusively refute movant’s claim that counsel was ineffective for failing to impeach the State’s only witness — the victim — with' prior inconsistent statements); Bulley v. State, 900 So. 2d 596, 597 (Fla. 2d DCA 2004) (reversing summary denial of postconvictioh motion alleging ineffective assistance of counsel that “identified the witnesses, provided what' their testimony would have been, stated that they were available to testify, and all…
Previewing 3 of 5 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)
- Ford v. State, 825 So. 2d 358 (Fla. 2002)
- Sorgman v. State, 549 So. 2d 686 (Fla. 1st DCA 1989)
- Green v. State, 827 So. 2d 1060 (Fla. 2d DCA 2002)