ROBERT M. YOUNG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed summary denial of ineffective assistance of counsel claims where defense counsel failed to discover and utilize surveillance video evidence that could have contradicted the State's theory that only the defendant was in the restroom.
Defense counsel's failure to discover and move for a mistrial based on surveillance video evidence showing other men entered the restroom during the alleged crime warrants reversal and an evidentiary hearing on ineffective assistance claims.
[1] Summary denial of ineffective assistance of counsel claims is improper when the record does not conclusively refute allegations that undiscovered evidence would have supp…
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Join FLexlaw to unlock all legal intelligence“Young alleges that the tape would have confirmed his contention that other men entered and exited the restroom during the time when the State's witnesses testified that only Young and the victim occupied the room.”
Court explaining why summary denial was improper and evidentiary hearing required
Young was convicted of lewd and lascivious exhibition for allegedly exposing his genitalia to a child in a department store restroom. The State's case…
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Robert M. Young appeals the summary *577denial of his rule 3.850 motion.1 Young’s postconviction motion made several claims of ineffective assistance of trial counsel. Two of those claims merit discussion and warrant reversal.
Young was convicted by a jury of one count of lewd and lascivious exhibition. The crime was perpetrated when an adult male, allegedly Young, exposed his genitalia under the stall of a department store restroom to a young boy in the adjoining stall. The State’s argument at trial was that Young had to be the perpetrator, in part because no other person was in the restroom at the time.
At trial, the testimony of the investigating officer revealed that there was a surveillance videotape depicting the entrance to the restroom area. In his postconviction motion, Young asserted that defense counsel was ineffective for failing to discover the videotape prior to trial and for failing to move for a mistrial when he learned of the tape at trial. These claims should not have been summarily denied. Young alleges that the tape would have confirmed his contention that other men entered and exited the restroom during the time when the State’s witnesses testified that only Young and the victim occupied the room. Because the record attachments do not conclusively refute these allegations, Young is entitled to an eviden-tiary hearing on the claims.
REVERSED and REMANDED for an evidentiary hearing.
LAWSON and EVANDER, JJ., concur.
JACOBUS, J., concurs and concurs specially, with opinion.
concurring specially.
It is troubling to this judge that the surveillance tape was not originally secured by the investigating officer. It would be apparent to anyone that the tape would be a critical piece of evidence and a copy, at the minimum, should have been secured. It is also troubling that the officer was permitted to discuss the contents of the tape before the jury since that testimony was clearly inadmissible hearsay. Once the existence of the tape was discovered by Young’s counsel, it would seem that Young would be entitled to a Richardson2 hearing, even though, as the State claims, the tape was never offered into evidence and was never in its possession.
JACOBUS, J.,
concurring specially.
It is troubling to this judge that the surveillance tape was not originally secured by the investigating officer. It would be apparent to anyone that the tape would be a critical piece of evidence and a copy, at the minimum, should have been secured. It is also troubling that the officer was permitted to discuss the contents of the tape before the jury since that testimony was clearly inadmissible hearsay. Once the existence of the tape was discovered by Young’s counsel, it would seem that Young would be entitled to a Richardson2 hearing, even though, as the State claims, the tape was never offered into evidence and was never in its possession.
. Richardson v. State, 246 So. 2d 771 (Fla.1971).