FREDERICK VANAUKEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In a postconviction ineffective assistance of counsel proceeding, the Florida Fifth District Court of Appeal reversed the trial court's summary denial of two claims, finding the trial court applied incorrect legal standards and failed to conduct required evidentiary hearings. The court affirmed summary denial of two other claims but allowed amendment of one.
Claims four and five were improperly summarily denied and must be considered at evidentiary hearings. Claim four denial was improper because the court failed to address whether evidence was properly admitted and whether its admission undermined confidence in the outcome. Claim five denial was improper because the allegedly overlooked evidence was not clearly cumulative, the court could not conclude the non-investigation was strategic without a hearing, and ineffective assistance claims are cognizable only in postconviction proceedings, not direct appeal.
[1] A trial court's summary denial of an ineffective assistance of counsel claim is erroneous when the court's reasoning fails to address whether the admission of evidence un…
[2] Evidence is not rendered cumulative, precluding an ineffective assistance of counsel claim, merely because the defendant testified to the same effect, as an independent w…
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Join FLexlaw to unlock all legal intelligence“Neither conclusion addresses the issue of whether the evidence was properly admitted, and, if not, whether the admission of the evidence undermined confidence in the outcome of the proceeding.”
Establishes that the trial court failed to apply the proper legal standard for evaluating the effect of allegedly improper evidence on trial outcome.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant Frederick VanAuken sought postconviction relief on multiple claims of ineffective assistance of counsel. The State had previously conceded e…
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We previously remanded this postcon-viction proceeding after the State conceded error in connection with the summary denial of several claims of ineffective assistance of counsel. After remand, the trial court once again summarily denied Appellant’s claims. We reverse in part.
In denying claim four, the trial court stated that: (1) the jury could have arrived at the same conclusion without this evidence, and (2) there was no evidence that the jury had considered the alleged improper evidence when rendering its verdict. Neither conclusion addresses the issue of whether the evidence was properly admitted, and, if not, whether the admission of the evidence undermined confidence in the outcome of the proceeding. Nor is the claim conclusively refuted by the small segments of transcript contained in the record before this Court, none of which deal with this claim. On remand, the trial court shall conduct an evidentiary hearing on this issue.
The trial court summarily denied claim five because the allegedly overlooked evidence would have been cumulative. We disagree. See, e.g., Solorzano v. State, 25 So.3d 19 (Fla. 2d DCA 2009) (trial court erred in summarily denying postconviction claim for ineffective assistance of counsel, based on failure to call bartender to testify to defendant’s consumption of alcohol, although defendant testified to same thing; evidence would not have been cumulative to defendant’s testimony, which could have been discounted by jury as self-serving); Cardenas v. State, 993 So.2d 546 (Fla. 1st DCA 2008) (summary dismissal of claim for ineffective assistance of counsel was improper; claim was not conclusively refuted by attachments to order showing proposed testimony mirrored defendant’s trial testimony, since witness’s testimony that defendant was not driving boat in BUI manslaughter case would have been more persuasive than defendant’s).
The trial court also concluded that claim five should be denied because trial *1188counsel’s decision “not to investigate” was a strategic choice, essentially not subject to challenge. This too was an erroneous conclusion on this record at this procedural juncture. See Pereira v. State, 29 So.3d 1186 (Fla. 5th DCA 2010) (trial court’s finding that action or inaction by defense counsel was tactical is generally inappropriate without evidentiary hearing). An evidentiary hearing can be avoided only when it is obvious from the record that the decision was strategic. Jackson v. State, 975 So.2d 485 (Fla. 2d DCA 2007).
Finally, the trial court concluded that claim five should have been raised on direct appeal. Again, we disagree. As a general rule, claims of ineffective assistance of counsel are not cognizable on direct appeal and can only be raised in a postconviction motion under Florida Rule of Criminal Procedure 3.850. See, e.g., Smith v. State, 998 So.2d 516, 522 (Fla.2008); Tolliver v. State, 10 So.3d 1199 (Fla. 5th DCA 2009). On remand, the trial court shall conduct an evidentiary hearing on claim five.
We affirm the summary denial of claims eleven and twelve, but direct the trial court to permit Appellant to amend claim twelve. See Spera v. State, 971 So.2d 754 (Fla.2007).
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
SAWAYA, TORPY and JACOBUS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Smith v. State, 998 So. 2d 516 (Fla. 2008)
- Solorzano v. State, 25 So. 3d 19 (Fla. 2d DCA 2009)
- Jackson v. State, 975 So. 2d 485 (Fla. 2d DCA 2007)
- Pereira v. State, 29 So. 3d 1186 (Fla. 5th DCA 2010)
- Hernandez v. State, 993 So. 2d 546 (Fla. 3d DCA 2008)
- Cardenas v. State, 993 So. 2d 546 (Fla. 1st DCA 2008)
- Tolliver v. State, 10 So. 3d 1199 (Fla. 5th DCA 2009)