GEODIS GONZALEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a claim of ineffective assistance of counsel regarding the failure to investigate defense witnesses was facially sufficient and required an evidentiary hearing.
[1] A claim of ineffective assistance of counsel based on the failure to investigate defense witnesses is facially sufficient when the defendant provides a list of available…
[2] A trial court's finding that a defense counsel's decision not to pursue a particular defense was tactical is generally inappropriate without an evidentiary hearing.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of first-degree murder and robbery with a firearm. He filed a motion for post-conviction relief, alleging, among other thi…
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FLETCHER, Judge.
Geodis Gonzalez appeals from the trial court’s denial of his petition for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part for an evidentiary hearing.
Gonzalez was charged with first degree murder and robbery with a firearm. He was convicted on both charges after jury trial, and his convictions were affirmed on appeal. Gonzalez raised several issues in a timely filed motion for post-conviction relief, which petition the trial court summarily denied. After his motion for rehearing was denied with opinion, Gonzalez appealed to this court for review.
Of the fourteen post-conviction issues (including sub-issues) raised by Gonzalez, only one requires reversal for an evidentiary hearing. In claim 7, Gonzalez asserts that his defense counsel failed to investigate a list of defense witnesses provided by the defendant, witnesses who could have testified that the state’s prisoner-informant Perdomo lied about the defendant’s jailhouse admission in order to seek a reduction of his sentence. The trial court in its order on rehearing stated, “the defendant’s claim is facially sufficient as he has provided a list of witnesses, who were available to testify, and has explained how such an omission of the testimony prejudiced the outcome.” [citations omitted]. The trial court is, thus far, correct. However, the trial court goes on to substitute its own speculation for defense counsel’s failure to investigate the witnesses, and chalks it up to trial tactics. “Counsel may make a tactical decision not to pursue [a particular defense], but a trial court’s finding that such a decision was tactical usually is inappropriate without an evidentiary hearing.” Kitchen v. State, 764 So. 2d 868, 869 (Fla. 4th DCA 2000). We thus reverse and remand for an evidentiary hearing on this single issue.
The remaining issues are either refuted by the record or fail to rise to Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ineffectiveness of counsel.
Affirmed in part, reversed in part.
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Citator
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Yanes v. State, 960 So. 2d 834 (Fla. 3d DCA 2007)…failed to investigate or call exculpatory witnesses [when] facially sufficient ... must either be refuted by attachments or an evidentiary hearing held.’ ” Id. at 361 (citation omitted); Jacobs v. State, 880 So. 2d 548 (Fla.2004); Gonzalez v. State, 913 So. 2d 707, 708 (Fla. 3d DCA 2005); Honors v. State, 752 So. 2d 1234, 1235-36 (Fla. 2d DCA 2000). We reverse on point four. The postconviction record does not conclusively refute defendant’s point five. The defendant claims that his counsel mi-sadvised him th…
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Delbis Diaz v. State, 23 So. 3d 1260 (Fla. 3d DCA 2009)…[*1261] WELLS, Judge. These consolidated appeals arise from issues associated with the resentencing of defendant Delbis Diaz in lower tribunal case number F95-29916, following this court’s remand. See Diaz v. State, 913 So. 2d 707 (Fla. 3d DCA 2005). In case 3D07-708, Diaz appeals the final order rendered October 23, 2006, which denied Diaz’ motion for disqualification of the trial judge. We find no merit to Diaz’ claim and accordingly affirm the order denying that motion. In…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Kitchen v. State, 764 So. 2d 868 (Fla. 4th DCA 2000)