RICARDO FERRER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the trial court's denial of postconviction relief on most grounds but reversed on the claim that counsel's misadvice about impeachment with prior convictions deprived appellant of his right to testify, requiring an evidentiary hearing.
Appellant's postconviction motion stating a legally sufficient claim that counsel's misadvice regarding impeachment with prior convictions deprived him of his right to testify satisfies both prongs of the Strickland test and requires an evidentiary hearing.
[1] Counsel's misadvice that the state could impeach a defendant with the facts and nature of his prior convictions, thereby depriving the defendant of his right to testify,…
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Join FLexlaw to unlock all legal intelligenceAppellant Ferrer sought postconviction relief, claiming his attorney misadvised him that the state could impeach him with facts and nature of his prio…
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We affirm the trial court’s order summarily denying appellant’s motion for postconviction relief on all grounds except one. As to that claim, he maintains that he was deprived of his right to testify because of his attorney’s misadvice that the state could impeach him with the facts and nature of his prior convictions. See Hope v. State, 960 So.2d 912 (Fla. 4th DCA 2007); Tyler v. State, 793 So.2d 137, 141 (Fla. 2d DCA 2001). We conclude that appellant’s motion is legally sufficient to state a claim on this ground on both the deficient performance and prejudice prongs of the Strickland test. See Oisorio v. State, 676 So.2d 1363 (Fla.1996). We reverse for the trial court to conduct an evidentiary hearing on the issue or attach portions of the record conclusively refuting this claim.
We affirm as to the other grounds raised. We specifically affirm the claim that counsel was deficient in failing to move to suppress appellant’s recorded conversation at the police station with his codefendant. The conversations were not the result of law enforcement deliberately fostering an expectation of privacy. See Larzelere v. State, 676 So.2d 394, 405 (Fla.1996); Allen v. State, 636 So.2d 494, 496-97 (Fla.1994); Williams v. State, 982 So.2d 1190, 1194 (Fla. 4th DCA 2008). Then-admission also did not violate appellant’s right of confrontation, as they were not testimonial statements under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
GROSS, C.J., and DAMOORGIAN, J., concur.
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Parks v. State, 54 So. 3d 1079 (Fla. 4th DCA 2011)…purchased the items before his breakup, and gave them to Parks as contribution to the living expenses given that he (Kerry) was unemployed. These points warrant further review. Oisorio v. State, 676 So. 2d 1363, 1364-65 (Fla.1996); Ferrer v. State, 2 So. 3d 1111, 1112 (Fla. 4th DCA 2009). Regarding the substance of Parks’s testimony, it is significant that no other evidence was offered to rebut the statutory presumption and that the jury acquitted Parks of the burglary. We reverse for the trial court to co…
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Vantavia B. Jackson-Johnson v. State, 188 So. 3d 133 (Fla. 4th DCA 2016)…any law enforcement officer or other person with the primary purpose of collecting evidence for criminal prosecution; instead, it was a spontaneous conversation that happened to have occurred within the range of an audio recorder); Ferrer v. State, 2 So. 3d 1111, 1112 (Fla. 4th DCA 2009) (defendant’s statements to his code-fendant on a recorded conversation at the police station" were not testimonial). Our conclusion also is consistent with cases from federal appellate courts which have rejected the adopti…
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Stephenson v. State, 79 So. 3d 880 (Fla. 5th DCA 2012)…him not to testify at trial. Because the record does not adequately refute this legally sufficient claim, we reverse that part of the order summarily denying it and remand this case to the trial court for an evidentiary hearing. See Ferrer v. State, 2 So. 3d 1111 (Fla. 4th DCA 2009). Otherwise, we affirm the order under review. AFFIRMED in part; REVERSED in part; and REMANDED. ORFINGER, C.J., SAWAYA and MONACO, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004)
- Larzelere v. State, 676 So. 2d 394 (Fla. 1996)
- Oisorio v. State, 676 So. 2d 1363 (Fla. 1996)
- Allen v. State, 636 So. 2d 494 (Fla. 1994)
- Earon L. Tyler v. State, 793 So. 2d 137 (Fla. 2d DCA 2001)
- Williams v. State, 982 So. 2d 1190 (Fla. 4th DCA 2008)
- Hope v. State, 960 So. 2d 912 (Fla. 4th DCA 2007)