DENNIS JAMES VAN LEER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2008-06-20
No. 5D07-3880
ORFINGER and TORPY, JJ., concur.
983 So. 2d 1228 Florida District Court of Appeal, Fifth District (2008) Positive Treatment
Cited by 3 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Dennis Van Leer appealed the denial of his postconviction motion claiming insufficient evidence of trafficking and ineffective assistance of counsel. The Florida appellate court affirmed the trial court's denial, finding that the sufficiency-of-evidence claim was barred as previously raised on direct appeal and that Van Leer failed to demonstrate prejudice from counsel's alleged failures.


Holding

The court affirmed the trial court's denial of the postconviction motion. The sufficiency-of-evidence claim was not cognizable on collateral attack because it was already raised and argued on direct appeal. The ineffective assistance claims failed because Van Leer did not demonstrate that the witnesses could have cast doubt on his guilt or that there was a reasonable probability the trial outcome would have been different absent counsel's alleged errors.


Headnotes

[1] Claims of error that were raised and decided on direct appeal are not cognizable in a motion for postconviction relief.

[2] A defendant seeking postconviction relief based on ineffective assistance of counsel must demonstrate both deficient performance and resulting prejudice.

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Key Quotes

“It is the defendant's burden to show that his counsel's performance was deficient and he was prejudiced as a result.”

Establishes the Strickland standard that Van Leer must meet to prove ineffective assistance of counsel.

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Facts & Procedural History

Police found methamphetamine in a clothing bin at a home occupied by Van Leer and his former girlfriend Catherine Hutchinson; Van Leer acknowledged th…

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Opinion of the Court
COHEN, J.

COHEN, J.

Dennis Van Leer appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Van Leer’s complaints fall into two categories: the State’s failure to prove all the necessary elements of the offense and his counsel’s failure to call witnesses. We affirm.

A jury convicted Van Leer of trafficking in methamphetamine. The evidence presented at trial showed that the police went to a home occupied by Van Leer and his former girlfriend, Catherine Hutchinson. Inside the home, methamphetamine was found in a clothing bin that Van Leer acknowledged was his. Additional methamphetamine was found in Van Leer’s pocket. Van Leer subsequently filed a motion for postconviction relief contending that the State failed to prove his constructive possession of the trafficking amount of methamphetamine. Van Leer also asserted that his trial and appellate counsels’ assistance was ineffective.

The trial judge’s handling of the postconviction proceeding was exemplary. Van Leer’s arguments that the State did not prove all the elements of trafficking and that his trial counsel was ineffective because he failed to call Catherine Hutchinson were properly denied without a hear ing by an interim or partial order. As the trial court properly found, Van Leer’s first argument challenging the sufficiency of the evidence based on Allen v. State, 622 So. 2d 526 (Fla. 2d DCA 1993), was preserved and argued on direct appeal, and thus was not cognizable through collateral attack. See Harvey v. Dugger, 656 So. 2d 1253, 1256 (Fla.1995) (holding claims raised on direct appeal are not subject to collateral attack). Van Leer’s second argument was meritless because the trial court, by attaching portions of the record, plainly demonstrated that Catherine Hutchinson did, in fact, testify on Van Leer’s behalf.

Van Leer’s other allegations of ineffective assistance of counsel were not refuted by the record, and the court properly held an evidentiary hearing. See Fla. R.Crim. P. 3.850(d); Jacobs v. State, 880 So. 2d 548, 550-51 (Fla.2004). At that hearing, Van Leer was unable to secure the presence of the three additional witnesses whose testimony he sought to present at trial. The court offered Van Leer additional time to attempt to secure their presence, but he declined this invitation. Instead, he proffered that two of the witnesses would have testified about a statement made by Catherine Hutchinson and that the third witness would have testified that a drug field test was not conducted at his home. At the conclusion of the evidentiary hearing, the trial court denied the remaining allegations of Van Leer’s motion for postconviction relief.

It is the defendant’s burden to show that his counsel’s performance was deficient and he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A failure to call witnesses may constitute ineffective assistance of counsel when the defendant proffers the substance of the witnesses’ testimony and the witnesses may have been able to cast doubt on the defendant’s guilt. Morris v. State, 931 So. 2d 821, 830 (Fla.2006). Here, Van Leer failed to indicate how these witnesses would have cast doubt on his guilt and the trial court properly rejected this claim.

The court also properly rejected Van Leer’s claims of ineffective assistance of counsel based on a failure to conduct depositions and file a motion to suppress because Van Leer failed to show that there was a reasonable probability that, but for these errors, the result of his trial would have been different. See Strickland, 466 U.S. at 694,104 S.Ct. 2052.

AFFIRMED.

ORFINGER and TORPY, JJ., concur.


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Citator

Cited By

  • Autavious M. Capers v. State, 48 So. 3d 934 (Fla. 3d DCA 2010)
    …refuted by the record because Capers admitted his participation in the crimes during the plea colloquy and gave a proffer regarding his involvement in the crimes. As such, the trial court correctly summarily denied this claim. See Van Leer v. State, 983 So. 2d 1228, 1229 (Fla. 5th DCA 2008). In the second ground he sets forth, Capers alleged that trial counsel was ineffective for failing to file a timely notice of appeal. The trial court found that the right to an appeal was waived through the plea colloquy…
  • Spears v. Dep't of Corr. (M.D. Fla. 2024)
    …epose the witness would relate.” Davis v. State, 928 So. 2d 1089, 1117 (Fla. 2005) (citations omitted). See also Ferrell v. State, 29 So. 3d 959, 969 (Fla. 2010); Magill v. State, 457 So. 2d 1367, 1370 (Fla. 1984); Van Leer v. State, 983 So. 2d 1228, 1230 (Fla. 5th DCA 2008). Defendant failed to "allege with particularity what these witnesses would have said had they been deposed or how their deposition testimony would have been different from their trial testimony.” Rosa v. State,…

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