JACKIE E. MERKISON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2009-01-12
No. 1D08-0617
KAHN, BENTON, and BROWNING, JJ., concur.
1 So. 3d 279 Florida District Court of Appeal, First District (2009) Positive Treatment
Cited by 6 cases

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Synopsis

Jackie E. Merkison appealed a trial court's summary denial of his Rule 3.850 motion for ineffective assistance of counsel. The appellate court affirmed the denial of two claims but reversed and remanded the second claim, which alleged counsel failed to properly preserve for direct appeal a trial court error regarding potentially prejudicial testimony about witness tampering.


Holding

The court reversed and remanded claim two, determining that counsel's objection may have been insufficient to preserve the claim for direct appeal and that Merkison may have been prejudiced. The court affirmed the summary denial of claims one and three.


Headnotes

[1] A trial court order denying a postconviction motion based on record attachments is a disposition on the merits.

[2] A trial court must attach to its order denying a postconviction motion those portions of the files and records that conclusively show the movant is not entitled to relief…

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Key Quotes

“the failure to preserve an issue for appellate review may be sufficient to constitute ineffective assistance of counsel, provided that the requirements of Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), are met”

Establishes the legal standard for evaluating ineffective assistance claims based on failure to preserve issues

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Facts & Procedural History

During trial, Department of Children and Families Investigator Reynolds testified that Merkison's wife had spoken with the child-victim with the inten…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The appellant filed a rule 3.850 motion raising three claims of ineffective assistance of trial counsel. We affirm the trial court’s summary denial of claims one and three but reverse and remand claim two for either attachments of record documents conclusively refuting the claim or for an evidentiary hearing.

In claim two the appellant argues that counsel was ineffective for failing to properly object to and preserve for his direct appeal the ground that the trial court committed reversible error by permitting Department of Children and Families Investigator Reynolds to testify that the appellant’s wife spoke to the child-victim with the intention to influence the child’s statements to the investigator. The record indicates that during the testimony counsel objected several times on various grounds including speculation and improper characterization of the content of the appellant’s wife’s statements. Investigator Reynolds stated during this testimony that the appellant’s wife had spoken with the child-victim to encourage the child-victim to “change her story.” In response counsel again objected on grounds of improper characterization of the wife’s discussion with the victim, and the court stated, “Okay. You may proceed.” It is undisputed that the appellant raised in the direct appeal that the trial court abused its discretion by allowing this testimony, and that the state argued that the issue had not been properly preserved for appeal. This Court then issued a per cu-riam affirmance of the direct appeal. See Merkison v. State, 913 So.2d 604 (Fla. 1st DCA 2005).

We have determined that this issue warrants reversal. See Tidwell v. State, 844 So.2d 701, 703 (Fla. 1st DCA 2003) (noting that a per curiam affirmance without an opinion in a direct appeal does not establish whether the specific issue was or was not preserved for appeal or whether it was or was not denied on the merits). As *281discussed in Tidwell, the failure to preserve an issue for appellate review may be sufficient to constitute ineffective assistance of counsel, provided that the requirements of Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), are met. The trial transcript indicates that the testimony against the appellant consisted of the victim’s testimony, which at times conflicted, and Investigator Reynold’s statement that the appellant’s wife had spoken with the child-victim with the intent to encourage her to “change her story,” which lent credibility to the victim’s testimony that she had initially lied to Reynolds due to the appellant’s wife’s influence.

Because the trial transcript indicates that counsel’s objection may have been insufficient to preserve the claim for the direct appeal, and that the appellant may have been prejudiced such that the outcome of the proceeding may have been different had counsel properly objected and preserved the error for direct appeal, we reverse and remand claim two for the trial court to either attach portions of the record which conclusively refute the allegation that the outcome of the case would have been different had counsel properly preserved this claim for the direct appeal, or to hold an evidentiary hearing on the claim.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART with directions.

KAHN, BENTON, and BROWNING, JJ., concur.


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Citator

Cited By

  • Brock R. Shade v. State, 59 So. 3d 1214 (Fla. 5th DCA 2011)
    …t is dispositive. Failure to preserve an issue for appeal may constitute ineffective assistance of counsel, so long as the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), are met. See Merkison v. State, 1 So. 3d 279, 281 (Fla. 1st DCA 2009). A claim that a defendant was induced to enter a plea upon counsel’s erroneous advice that an issue was preserved for appeal is facially sufficient. See Hawley v. State, 822 So. 2d 552 (Fla. 1st DCA 2002). “[T]he voluntarine…
  • Nabor Mendoza v. State, 35 So. 3d 71 (Fla. 1st DCA 2010)
    …tach any record evidence to support its denial. We therefore reverse and remand for the trial court to either attach such portions of the record which conclusively refute this claim, or to hold an evidentiary hearing. See, e.g., Merkison v. State, 1 So. 3d 279 (Fla. 1st DCA 2009) (reversing and remanding for record attachments or an evidentiary hearing in a case involving a claim that an adult had encouraged the child-victim to lie about alleged sexual abuse). REVERSED AND REMANDED. KAHN, ROWE, and MA…
  • Sapp v. State (Fla. 1st DCA 2023)
    …of this contention from Carratelli.4 Sapp denies that an allegation that he could have prevailed on appeal is insufficient to support an ineffective assistance of trial counsel claim. His argument is based solely on his claim that Merkison v. State, 1 So. 3d 279 (Fla. 1st DCA 2009), requires reversal, notwithstanding Carratelli. We disagree. In Merkison we ruled that an ineffective-assistance claim was sufficient because “the outcome of the proceeding may have been different had counsel properly objected an…

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