ELIJAH BADGER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Elijah Badger appeals the denial of his post-conviction relief motion under Florida Rule of Criminal Procedure 3.850, challenging his convictions for attempted burglary of a conveyance with a battery, cocaine possession, and attempted strong-arm robbery. The appellate court reversed and remanded two claims for further proceedings based on ineffective assistance of counsel arguments.
The court held that Badger's claims two and four sufficiently alleged ineffective assistance of counsel and reversed and remanded those claims for further proceedings. The proposed witness testimony was not merely cumulative because the jury only heard the officer's account and corroborating testimony, and the claim regarding the attempted burglary instruction had merit under controlling precedent.
[1] A post-conviction relief claim alleging ineffective assistance of counsel for failing to investigate and call witnesses is sufficiently pleaded when it identifies the wit…
[2] Testimony is not cumulative if it contradicts the testimony of key prosecution witnesses and would present an alternative theory of events to the jury.
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Join FLexlaw to unlock all legal intelligence“We find that the claim sufficiently alleged the identity of the witnesses, their testimony, that the witnesses were available to testify at the trial, and how this lack of testimony prejudiced the outcome of the verdict.”
Establishes the court's standard for evaluating ineffective assistance of counsel claims based on failure to call witnesses
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Join FLexlaw to unlock all legal intelligenceBadger was convicted of attempted burglary of a conveyance with a battery, possession of cocaine, and attempted strong-arm robbery. He claims trial co…
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PER CURIAM.
Elijah Badger appeals a final order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand claims two and four for further proceedings.
In claim two appellant argues that trial counsel was ineffective for failing to investigate and call two witnesses at trial. Appellant was convicted of attempted burglary of a conveyance with a battery, possession of cocaine and attempted strong arm robbery. Appellant alleges that the two witnesses would have testified that Badger did not enter the undercover police officer’s vehicle willingly but instead the undercover police officer grabbed the defendant and held him at the vehicle until backup arrived.
The state argued that this claim is without merit as the testimony alleged was merely cumulative. We find that the claim sufficiently alleged the identity of the witnesses, their testimony, that the witnesses were available to testify at the trial, and how this lack of testimony prejudiced the outcome of the verdict. Nelson v. State, 875 So. 2d 579 (Fla.2004). Furthermore, this alleged testimony would not be cumulative as the jury only heard testimony from the undercover police officer that appellant intentionally entered the vehicle and other witnesses who corroborated the police officer’s story. Upon remand the trial court should conduct an evidentiary hearing to determine whether counsel did fail to call these witnesses or whether the failure was due to trial strategy, or should attach records that conclusively refute this claim.
In his fourth claim appellant alleged trial counsel failed to object to the jury instruction on attempted burglary of a conveyance with a battery because the evidence only showed a completed burglary. We find that pursuant to Richardson v. State, 922 So. 2d 331 (Fla. 4th DCA 2006), and Pepitone v. State, 846 So. 2d 640 (Fla. 2d DCA 2003), this claim has merit and reverse and remand for an evidentiary hearing or the attachment of records that conclusively refute this claim. We affirm as to all other claims.
STEVENSON, C.J., SHAHOOD and HAZOURI, JJ., concur.
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Rollins v. State, 997 So. 2d 1288 (Fla. 4th DCA 2009)…esses at trial is sufficient if it “allege[s] the identity of the witnesses, their testimony, that the wit [*1289] nesses were available to testify at the trial, and how this lack of testimony prejudiced the outcome of the verdict.” Badger v. State, 933 So. 2d 729 (Fla. 4th DCA 2006) (citing Nelson v. State, 875 So. 2d 579 (Fla. 2004)). Appellant alleges only the first name of one of the witnesses and no addresses or locations for any of the witnesses. He also does not specifically assert that each of them wa…
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Wallace v. State, 942 So. 2d 1028 (Fla. 4th DCA 2006)…Criminal Procedure 3.850. We reverse and remand for further review of claim three. This point concerns Wallace’s legally-sufficient allegation that counsel failed to investigate and call an alleged alibi witness to testify at trial. Badger v. State, 933 So. 2d 729 (Fla. 4th DCA 2006); Nelson v. State, 875 So. 2d 579 (Fla.2004). On remand, the trial court shall conduct an evidentiary hearing to determine whether counsel was ineffective such that Wallace suffered the requisite prejudice. Strickland v. Washingto…
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Lawton Cohen v. State (Fla. 4th DCA 2023)
Previewing 3 of 4 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)
- Pepitone v. State, 846 So. 2d 640 (Fla. 2d DCA 2003)
- Richardson v. State, 922 So. 2d 331 (Fla. 4th DCA 2006)