ALEJANDRO ROY FOWLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alejandro Roy Fowler appealed the denial of his post-conviction relief motion under Florida Rule of Criminal Procedure 3.850. The appellate court affirmed most of the trial court's summary denials but reversed three issues due to the trial court's failure to attach adequate portions of the record to support its rulings on prosecutorial misconduct and newly discovered evidence claims.
The court affirmed the trial court's denial of most issues but reversed three issues (VI, VII, and IX) because the trial court failed to attach sufficient portions of the record to support its rulings. The court remanded for the trial court to attach portions of the record to refute these claims or to hold an evidentiary hearing.
[1] A trial court must attach portions of the record to support its summary denial of post-conviction relief claims.
[2] Prosecutorial questioning of a defendant regarding their belief about the veracity of state witnesses is improper.
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Join FLexlaw to unlock all legal intelligence“Such questioning is improper.”
Establishes that asking a defendant whether he believed state witnesses fabricated their testimony is improper prosecutorial conduct in Issue VI.
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Join FLexlaw to unlock all legal intelligenceFowler was convicted in a robbery case. During trial, the prosecutor asked Fowler whether he believed two state witnesses had fabricated portions of t…
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Alejandro Roy Fowler appeals an order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The lower court denied five issues summarily and the three remaining issues following an evidentiary hearing. We affirm all but three of the issues that were summarily denied, because the trial court failed to attach portions of the record to support the ruling.
In Issue VI, the defendant contended that his trial counsel provided ineffective assistance by failing to object when the prosecutor asked defendant whether he believed that two of the state’s witnesses had fabricated portions of their testimony. Such questioning is improper. See Johnson v. State, 969 So.2d 938, 954 (Fla.2007); Knowles v. State, 632 So.2d 62, 65-66 (Fla.1993).
In Issue VII, defendant claimed that trial counsel should have objected when the prosecutor said during closing argument that defendant had not proclaimed his innocence when the police were investigating the robbery in his neighborhood, by telling them that someone else had used defendant’s gun to commit the robbery. Specifically, the prosecutor said: “Isn’t it reasonable to believe that a law abiding citizen would run out to the police and say hey, I got to tell you something. There’s a gun in here that was used in this armed robbery. And these guys, I want to tell you who they are. Did he do that? No, he didn’t.” Defendant’s claim established prima facie that the prosecutor thereby improperly shifted the burden of proof to the defendant. See Sackett v. State, 764 So.2d 719 (Fla. 2d DCA 2000).
Finally, in Issue IX, defendant claimed he was entitled to a new trial based upon newly discovered evidence consisting of a written recantation by one of the state’s key witnesses. The court observed that defendant had not attached the document to the record, but the record on appeal shows one page of the document, which defendant says was a mistake by the clerk’s office. The trial court attached the testimony of a different witness and of defendant to support the denial of this issue but did not attach the testimony of the witness who recanted. This court cannot conduct a meaningful review of this issue without being able to see the complete letter and sufficient portions of the transcript that show why it is unlikely that the recantation would result in an acquittal on retrial. See Murrah v. State, 773 So.2d 622 (Fla. 1st DCA 2000).
We affirm in part and reverse in part and remand for the lower court to attach portions of the record to refute these three claims or to hold an evidentiary hearing.
VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.
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Citator
Cited By
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Lenz v. State, 245 So. 3d 795 (Fla. 4th DCA 2018)…a v. State, 840 So. 2d 284, 288 (Fla. 5th DCA 2003) (footnotes omitted). Our courts have also opined that an argument emphasizing a defendant’s failure to proclaim his innocence is the equivalent of a burden-shifting argument. See Fowler v. State, 67 So. 3d 1073, 1074 (Fla. 1st DCA 2011) (finding that trial court should have granted evidentiary hearing on defendant’s post-conviction claim of ineffective assistance of counsel, which related to prosecutor’s argument that defendant should have proclaimed his i…
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Williams v. State, 258 So. 3d 575 (Fla. 5th DCA 2018)
Authorities Cited
- Johnson v. State, 969 So. 2d 938 (Fla. 2007)
- Knowles v. State, 632 So. 2d 62 (Fla. 1993)
- Murrah v. State, 773 So. 2d 622 (Fla. 1st DCA 2000)
- Sackett v. State, 764 So. 2d 719 (Fla. 2d DCA 2000)