TREVOR PAYNE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2009-11-06
No. 5D09-865
SAWAYA, LAWSON, and COHEN, JJ„ concur.
21 So. 3d 900 Florida District Court of Appeal, Fifth District (2009) Positive Treatment
Cited by 6 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.


Holding

The court held that the trial court erred in summarily denying certain claims in a rule 3.850 proceeding without an evidentiary hearing, as the allegations were not conclusively refuted.


Headnotes

[1] A trial court must hold an evidentiary hearing on claims in a post-conviction relief proceeding when the allegations raised are not conclusively refuted by the record.

[2] Ineffective assistance of counsel claims based on the failure to call a witness require an evidentiary hearing if the potential testimony is not cumulative and could crea…

Previewing 2 of 5 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

Facts & Procedural History

Appellant alleged ineffective assistance of counsel and newly discovered evidence in a rule 3.850 proceeding, claiming witnesses would testify to his …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

We reverse the trial court’s summary denial of Appellant’s first, third, fifth, and *901eighth claims in the instant rule 3.850 proceeding as the trial court has failed to conclusively refute the allegations raised therein. We find that these four claims must be resolved in an evidentiary hearing.

In his first claim, Appellant alleged that defense counsel was ineffective for failing to call Matthew Thomas as a witness at Appellant’s jury trial. According to Appellant, Thomas would have testified, inter alia, that while incarcerated with Appellant’s co-defendant, Keith Holloway, at the Brevard County Detention Center, Holloway informed Thomas that he (Holloway) shot the victim and that Appellant was neither in the vehicle at the time of the shooting nor otherwise involved in the events that culminated in the death of the victim.

In claim five, Appellant raised a claim of newly discovered evidence, alleging that co-defendant Keith Holloway was now willing to testify on behalf of Appellant that Appellant was neither at the scene of the shooting nor otherwise involved.1 Furthermore, Appellant alleged that Holloway would testify that he (Holloway) was the actual shooter and that he was accompanied at the scene by Reginald Patterson and Allen Patterson. Finally, Holloway would testify that after fleeing from the scene in Reginald Patterson’s purple Crown Victoria, the three men would later switch cars and flee in Ashley Barks’ vehicle.

In claim three, Appellant alleged that defense counsel was ineffective for failing to call Ashley Barks as a witness at Appellant’s trial. According to Appellant, Barks was the girlfriend of Allen Patterson at the time of the crime and would testify that, in its immediate aftermath, she was awakened by Allen Patterson at her home and told by Allen that he needed to borrow her car to take Reginald Patterson and Keith Holloway home. Barks would further testify that Appellant was not present during this conversation and that she would later be told by Allen Patterson that he (Allen Patterson) was involved in the offenses.

The trial court denied Appellant’s first claim, finding that any testimony regarding the statements made by co-defendant Keith Holloway while in jail would be merely cumulative to the same testimony actually offered by co-defendant Reginald Patterson at Appellant’s trial. As for the potential testimony of Holloway himself (claim five), the trial court again concluded that any such testimony would be merely cumulative of the trial testimony of co-defendant Reginald Patterson. Finally, with respect to the testimony of Ashley Barks, the trial court concluded that her testimony would not have affirmatively demonstrated that Appellant was not otherwise involved in the offense.

We conclude that these claims, as well as Appellant’s eighth claim (cumulative error), should be reversed and remanded for an evidentiary hearing. It is apparent from the instant record that Appellant’s defense at trial was premised on a mistaken identity between himself and Allen Patterson. Although Appellant did not take the witness stand himself, he did present the testimony of his girlfriend, who testified that Appellant was at her house, where he spent the night, during the time when the instant crimes occurred. In addition, Appellant also offered the testimony of another co-defendant, Reginald Patterson, who testified that Appellant was not involved in the shooting nor present at the scene of the crime, but that Allen Patterson was.

*902Because the record appears to support the conclusion that the instant case boiled down to a credibility contest between the testimony of witnesses from the State and the defense, we are not convinced that the trial court’s conclusion that the apparently cumulative nature of the testimony of potential witnesses Matthew Thomas and Keith Holloway is sufficient to conclusively refute claims one and five. Cf. Peter v. State, 844 So.2d 699, 699 (Fla. 4th DCA 2003) (“[T]he testimony of a witness should not be excluded as cumulative if doing so reduces the case to a credibility contest between the victim and the defendant.”). Nor are we persuaded by the trial court’s summary conclusion as to claim three that Ashley Barks’ testimony that Appellant was not present when she spoke to Reginald, Keith, and Allen in the immediate aftermath of the offenses would be irrelevant.

Instead, we believe these claims should be entertained at an evidentiary hearing where the trial court will have an opportunity to evaluate the credibility of these potential witnesses and determine whether there exists a reasonable probability that Appellant’s trial might have resulted in a different outcome had this testimony been offered.

We affirm the trial court’s summary denial of Appellant’s remaining claims.

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA, LAWSON, and COHEN, JJ„ concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Yasmany NOA v. State, 356 So. 3d 838 (Fla. 4th DCA 2023)
    …e, 502 So. 2d 1225, 1226 (Fla. 1987)). Even if the substance is somewhat cumulative, counsel could be ineffective for failing to call a witness where the case is essentially a credibility contest between State and defense witnesses. Payne v. State, 21 So. 3d 900, 902 (Fla. 5th DCA 2009). We therefore reverse and remand the case for an evidentiary hearing where the trial court can evaluate the potential alibi witnesses’ credibility and determine whether there is a reasonable probability this testimony could…
  • Payne v. State, 74 So. 3d 550 (Fla. 5th DCA 2011)
    …ation for untruthfulness. The trial court summarily denied the claim because Trent had been effectively impeached at trial. We affirmed the summary disposition on that ground. . Payne v. State, 965 So. 2d 149 (Fla. 5th DCA 2007). . Payne v. State, 21 So. 3d 900 (Fla. 5th DCA 2009). . Appellant’s trial counsel and a seasoned investigator from the Office of the Public Defender both admitted at the evidentiary hearing that they were well aware of the existence of Thomas and Barks, and had been deficient for…
  • Tolliver v. State, 247 So. 3d 673 (Fla. 5th DCA 2018)
    …sed witnesses will testify as Appellant alleges, we conclude that this case appears to turn on a credibility determination between the testimony of the victim and Johnson for the State and that of Appellant's proposed witnesses. See Payne v. State , 21 So. 3d 900, 902 (Fla. 5th DCA 2009). In such a case, Appellant is entitled to an evidentiary hearing, or the attachment of records that conclusively refute Appellant's claim. Id. REVERSED in part; AFFIRMED in part; and REMANDED. COHEN, C.J., and EISNAUGLE, J…

Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw