KENNETH J. DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2012-06-15
No. 2D11-4570
WHATLEY and WALLACE, JJ., Concur.
89 So. 3d 1124 Florida District Court of Appeal, Second District (2012) Positive Treatment
Cited by 1 case

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Synopsis

Kenneth Davis appealed the summary denial of his postconviction relief motion under Florida Rule of Criminal Procedure 3.850, raising six claims of ineffective assistance of counsel. The appellate court reversed and remanded as to claims one and two regarding counsel's failure to address significant discrepancies in drug weights between police reports and lab analysis, but affirmed the denial of the remaining claims.


Holding

The court reversed and remanded claims one and two, finding that the record did not refute Davis's claim that the drugs may have been tampered with and that trial counsel failed to address the apparent tampering. The court affirmed the denial of the remaining four claims.


Headnotes

[1] A defendant's claim of ineffective assistance of counsel based on counsel's failure to object to the admissibility of drug evidence may warrant postconviction relief when…

[2] Discrepancies between the weight of suspected drugs reported in police documents and the weight reported in lab analysis results can raise questions about tampering and t…

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Key Quotes

“In short, the record before us does not refute Davis's claim that the suspected drugs were tampered with and that trial counsel failed to address the apparent tampering.”

Establishes the court's holding that the weight discrepancies raised legitimate questions about drug tampering that required further proceedings.

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Facts & Procedural History

Davis was convicted of six charges including felonious possession of firearms, sale of cocaine, sale of marijuana, and possession of cocaine and marij…

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Opinion of the Court
BLACK, Judge.

BLACK, Judge.

Kenneth J. Davis appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850, in which he raised six claims for relief. We reverse and remand for further proceedings as to claims one and two but affirm as to the remaining claims without further comment.

Davis was convicted of six charges: felonious possession of firearms, sale of cocaine, sale of marijuana, possession of cocaine (two counts), and possession of marijuana. In his timely motion for post-conviction relief, Davis alleged in claim one that counsel was ineffective for failing to object to the admissibility of the drug evidence. In claim two, he alleged that counsel was ineffective for failing to “aggressively” cross-examine one of the police officers on the drug evidence. Specifically, Davis alleged that the total weight of the suspected marijuana and crack cocaine shown in the police reports was 223.4 grams and 4.8 grams, respectively, whereas the results of the lab analysis showed 101.0 grams and 0.9 grams. Davis’s computations are consistent with the police reports and lab documentation attached to his motion.1

The postconviction court summarily denied the claims,, attaching portions of the trial transcripts. The court points out that the lab chemist took samples of each of the substances to test them rather than testing the entire mass of the substances. However, the fact that the chemist analyzed samples does not explain the weight differentials. The chemist’s written report also lists the respective weights of the several drug items. The court also notes that weights testified to by the chemist exclude the weight of the packaging. But nothing in the police documentation implies that the weights shown are inclusive of packaging.2

*1126Finally, as for claim two, the court pointed out that counsel did question the detective on various other apparent inconsistencies in the evidence. However, the fact that counsel pursued other inconsistencies but not the inconsistency in drug weights is irrelevant to that particular issue.

In short, the record before us does not refute Davis’s claim that the suspected drugs were tampered with and that trial counsel failed to address the apparent tampering. See Dodd v. State, 587 So.2d 626, 628 (Fla. 3d DCA 1988) (“On this record we cannot tell whether the cocaine [the appellant] sold and the cocaine introduced at trial are one and the same. Thus, it was error for the trial court to admit the cocaine into evidence without [additional] testimony....”); Monroe v. State, 13 So.3d 1083, 1084-85 (Fla. 2d DCA 2009) (relying on Dodd to reverse and remand on a rule 3.850 claim concerning a discrepancy in drug weights indicative of probable tampering). We therefore reverse the denial of claims one and two and remand for the postconviction court to provide record attachments that conclusively refute these claims or to conduct an evi-dentiary hearing.

Affirmed in part, reversed in part, and remanded.

WHATLEY and WALLACE, JJ., Concur.


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Cited By

  • …So. 2d 1073, 1082 (Fla. 2002) (citing State v. Taplis, 684 So. 2d 214, 215 (Fla. 5th DCA 1996)). Florida courts have determined that a probability of tampering is shown when there is a “gross” discrepancy in the drug weights. See Davis v. State, 89 So. 3d 1124, 1125–26 (Fla. 2d DCA 2012). Because Disdier presents no evidence of tampering, the state trial court would have denied a motion to suppress. Disdier cannot satisfy Martinez to overcome the default of this ground because the ground is not “substa…

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