DENNIS DAVID BRISTOL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dennis Bristol appealed the denial of his Rule 3.850 motion alleging prosecutorial misconduct and ineffective assistance of counsel. The appellate court affirmed most denials but reversed the summary denial of claim four, holding that the postconviction court erred by summarily denying without record support Bristol's allegations that trial counsel was ineffective for failing to object to prosecutorial statements that shifted the burden of proof and mischaracterized testimony.
The court held that the prosecutor's statement asking the jury what evidence supported a not-guilty verdict can be interpreted as improperly shifting the burden of proof to the defendant. The court reversed the summary denial of claims regarding both the burden-shifting statement and the alleged mischaracterization of testimony, requiring the postconviction court to either attach conclusively refuting record documents or conduct an evidentiary hearing.
[1] A prosecutor's statement during closing argument may improperly shift the burden of proof if it can be interpreted as requiring the defendant to present evidence of innoc…
[2] A postconviction court must either attach record documents conclusively refuting a claim of ineffective assistance of counsel or conduct an evidentiary hearing.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In claim four, Bristol argued that trial counsel was ineffective for failing to object to certain comments made by the prosecutor during closing argument... the postconviction court summarily denied this claim, concluding that the comments were not improper and that therefore counsel's failure to object to them did not amount to deficient performance.”
Describes the nature of the ineffective assistance claim Bristol raised regarding prosecutorial comments.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBristol was convicted of charges including resisting with violence. During closing argument, the prosecutor made statements that Bristol alleged impro…
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DAVIS, Judge.
Dennis David Bristol, pro se, challenges the postconviction court’s denial of his Florida Rule of Criminal Procedure 3.850 motion in which he raised three claims of prosecutorial misconduct and four claims of ineffective assistance of trial counsel. The postconviction court summarily denied claims one through five and denied claims six and seven following an evidentiary hearing. We affirm the denial of claims one through three and five through seven without further discussion but reverse the summary denial of portions of claim four. In claim four, Bristol argued that trial counsel was ineffective for failing to object to certain comments made by the prosecutor during closing argument. The postconviction court summarily denied this claim, concluding that the comments were not improper and that therefore counsel’s failure to object to them did not amount to deficient performance.
Bristol argues on appeal that the postconviction court erred in summarily denying his claim that the prosecutor improperly shifted the burden of proof by making the following statement during closing argument: “So I’m going to ask you, the judge will instruct you to do so. If you find the Defendant not guilty, what’s the evidence? If you believe the officers, then find him guilty of all charges. And read through the laws.” 1
We agree that this statement can be interpreted as shifting to Bristol the burden of presenting some evidence that would establish that he is not guilty of the charged offense. See Jackson v. State, 832 So. 2d 773, 778 (Fla. 4th DCA 2002) (“In the instant case, the comment ‘[wjhat evidence was presented in this case that makes you believe [Detective] Brimm was incorrect, not what evidence is before you’ appears ... to be a comment that shifts the burden to appellant to present evidence to show Brimm was incorrect.” (first alteration in original)). Furthermore, although the postconviction court concluded that this statement does not shift the burden of proof, it did not cite any authority or include any record attachments to refute Bristol’s allegation that counsel was ineffective for failing to object to this comment. As such, we must reverse the post-conviction court’s summary denial of this claim and remand for the court to either attach record documents that will conclusively refute this claim or conduct an evidentiary hearing.
Similarly, the postconviction court summarily denied Bristol’s claim that counsel was ineffective for failing to object to the prosecutor’s statement during closing argument that one of the officers involved in the melee that led to Bristol’s resisting with violence charge testified that he saw another officer get hit in the face. Specifically, the prosecutor said, “And he even told you with the branches he couldn’t see all of it, but did see the swing across, saw the closed fist, saw boom, saw the fist hit, something did this.” (Emphasis added.) In his rule 3.850 motion, Bristol alleged that the officer actually testified, “I never saw the fist connect with Detective Gonzalez’s face or head, but I saw his head jar backwards, and he fell to the ground.” Because the postconviction court denied this claim and failed to attach documents that conclusively refute Bristol’s claim that counsel was ineffective for failing to object to what he alleges was a misstatement of the testimony by the prosecutor, we also reverse the court’s summary denial of this claim and remand for the court to either attach record documents that will conclusively refute the claim or conduct an evidentiary hearing.
Affirmed in part and reversed in part.
KELLY and LaROSE, JJ., Concur. . We note that the record before this court does not include a transcript of the closing arguments delivered at Bristol's trial. However, because the postconviction court summarily denied Bristol’s claims without record attachments, we must accept his allegations as true. See Harich v. State, 484 So. 2d 1239, 1241 (Fla.1986) ("Because an evidentiary hearing has not been held on the ineffective assistance of counsel claims, we must treat [appellant’s] allegations as true except to the extent that they are conclusively rebutted by the record.”).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Harich v. State, 484 So. 2d 1239 (Fla. 1986)
- Izel Jackson v. State, 832 So. 2d 773 (Fla. 4th DCA 2002)