KEVIN DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a claim of ineffective assistance for failure to call alibi witnesses is facially insufficient if it lacks details about the witnesses and their testimony.
Appellant sought post-conviction relief, alleging ineffective assistance of counsel for failing to investigate and call alibi witnesses during a proba…
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POLEN, J.
This is an appeal from the trial court’s order summarily denying appellant’s motion for post-conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850. Appellant raised nine separate grounds that trial counsel was ineffective. We affirm all grounds without comment, with the exception of ground eight. As to this claim, appellant asserted counsel was ineffective for failure to investigate and call alibi witnesses. We find appellant’s claim facially insufficient, but remand to the trial court to grant leave to amend.
While appellant was on probation, he was arrested for his involvement in a burglary. During the subsequent violation of probation hearing, appellant was adjudicated guilty and sentenced to ten years in prison. Appellant then filed this timely motion for post-conviction relief. Appellant alleged in this motion, inter alia, that trial counsel was deficient for failing to interview or call alibi witnesses once the probation violation hearing commenced. Appellant’s motion was silent as to the witness’s identity, substance of testimony, availability to testify or the prejudicial effect of the witness failing to testify. As such, we find appellant’s claim facially insufficient. See Nelson v. State, 875 So. 2d 579, 581-84 (Fla.2004); Stringer v. State, 757 So. 2d 1226, 1226-27 (Fla. 4th DCA 2000).
In Spera v. State, 971 So. 2d 754 (Fla.2007), however, the supreme court held such insufficient claims should be dismissed with leave to amend, if the petitioner can do so, to provide the necessary allegations. Accordingly, we reverse in part the lower court’s order denying relief and remand to the lower court with leave to amend ground eight within a specific period of time, as outlined in Spera.
FARMER and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Greggs v. State, 990 So. 2d 708 (Fla. 4th DCA 2008)…to file a motion to suppress and to depose certain witnesses. On remand the trial court shall permit Greggs to file a facially sufficient motion within thirty (30) days, pursuant to Spera v. State, 971 So. 2d 754 (Fla.2007). See also Davis v. State, 987 So. 2d 235 (Fla. 4th DCA 2008); Gates v. State, 984 So. 2d 1290 (Fla. 4th DCA 2008). STONE, STEVENSON and DAMOORGIAN, JJ., concur.…
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Nelson v. State, 875 So. 2d 579 (Fla. 2004)
- Stringer v. State, 757 So. 2d 1226 (Fla. 4th DCA 2000)