ROBERT LOUDERMILK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Loudermilk appealed a post-conviction motion raising ineffective assistance of counsel claims after his conviction for sexual battery and related crimes against his granddaughter. The court affirmed denial of the first claim but reversed and remanded the second claim regarding counsel's advice against testifying, finding the alibi defense could have been significant.
The court affirmed summary denial of the first ineffective assistance claim but reversed and remanded the second claim for an evidentiary hearing. The two on-the-record waivers of the right to testify alone did not justify summary denial where counsel's advice not to testify regarding an alibi defense was potentially deficient and prejudicial.
[1] A claim of ineffective assistance of counsel based on misadvice regarding the defendant's decision to testify requires consideration of both the voluntariness of the waiv…
[2] Misadvice concerning whether a criminal defendant should testify in his own defense can constitute a potentially colorable basis for finding ineffective assistance of cou…
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Join FLexlaw to unlock all legal intelligence“mandates consideration of both the voluntariness of any waiver as well as the reasonableness of counsel's advice not to testify in judging counsel's effectiveness once challenged as to the advice”
Establishes the two-part standard from Lott v. State for evaluating whether counsel was ineffective in advising a client not to testify
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Join FLexlaw to unlock all legal intelligenceLoudermilk was convicted of sexual battery, lewd or lascivious molestation, and lewd or lascivious conduct involving his granddaughter. His conviction…
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Appellant Robert Loudermilk was convicted of sexual battery, lewd or lascivious molestation, and lewd or lascivious conduct for acts involving his granddaughter; his convictions and sentences were affirmed on direct appeal. Loudermilk v. State, 33 So.3d 779 (Fla. 4th DCA 2010). He subsequently filed a timely motion for post-conviction relief, Fla. R.Crim. P. 3.850, raising two claims of ineffective assistance of trial counsel. We affirm the trial court’s summary denial of the first claim without comment.
However, as to appellant’s contention that trial counsel misadvised him not to testify at trial concerning a work-related alibi defense, we reject the trial court’s conclusion that appellant’s two on-the-record waivers of his right to testify sufficed to justify summary denial of this claim. Our supreme court in Lott v. State, 931 So.2d 807, 819 (Fla.2006), mandates consideration of both the voluntariness of any waiver as well as the reasonableness of counsel’s advice not to testify in judging counsel’s effectiveness once challenged as to the advice. See also Simon v. State, 47 So.3d 883, 886 (Fla. 3d DCA 2010); Hayes v. State, 79 So.3d 230, 231 (Fla. 2d DCA 2012). We have previously recognized misadvice concerning the decision of a criminal defendant whether or not to testify in his own defense as raising a potentially colorable basis for finding ineffective assistance of counsel. Nelson v. State, — So.Sd-(Fla. 4th DCA 2012). In addition, we have found that where the defendant’s proposed testimony was the only evidence establishing a legally-recognized defense to his charges, counsel was deficient in advising silence instead of the defendant testifying as to that defense. Visger v. State, 953 So.2d 741, 744 (Fla. 4th DCA 2007). While appellant’s wife testified that appellant was never alone with the victim during the five-year period alleged in the information, she did not say she was continuously in his presence. As a result, testimony by appellant that he was employed for many hours a day for all but two months of the time period out of which his criminal charges arose had the potential to undermine the weight given by his jury to the victim’s inculpatory testimony, and so counsel’s advice to appellant not to testify was potentially prejudicial to his case.
*961Accordingly, we affirm the order appealed from as to claim one, but reverse and remand as to claim two with directions to grant appellant an evidentiary hearing.
Affirmed in -part, Reversed in part, and Remanded with directions.
WARNER, POLEN and STEVENSON, JJ., concur.
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Citator
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Tafolla v. State, 162 So. 3d 1073 (Fla. 4th DCA 2015)…d before us does not conclusively refute claim two, which alleges ineffective assistance in trial counsel’s advice regarding appellant’s decision not to testify at trial. See, e.g., Lott v. State, 931 So. 2d 807, 819 (Fla.2006); Loudermilk v. State, 106 So. 3d 959, 960 (Fla. 4th DCA 2013) (recognizing that Lott “mandates consideration of both the vol-untariness of any waiver as well as the reasonableness of counsel’s advice not to testify”). Counsel may be ineffective in advising defendant not to testify at t…
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Roberts v. State (Fla. 2d DCA 2018)…his decision to testify because he could have "provided an innocent explanation for the presence of his DNA on the firearm used in the offenses" and "absent his testimony, there was no chance for his defense to succeed"); - 8 - Loudermilk v. State, 106 So. 3d 959, 960-61 (Fla. 4th DCA 2013) (reversing, in a case involving sexual abuse of a minor where trial counsel told the defendant not to testify, the summary denial of an ineffective assistance claim because the testimony the defendant alleged he would hav…
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Deandrew T. Scott v. State (Fla. 5th DCA 2022)…tation omitted). “[M]isadvice concerning the decision of a criminal ---PAGE 7--- defendant whether or not to testify in his own defense [raises] a potentially colorable basis for finding ineffective assistance of counsel.” Loudermilk v. State, 106 So. 3d 959, 961 (Fla. 4th DCA 2013) (citation omitted). Conversely though, when a defendant misunderstands his attorney’s advice, his claim fails the first Strickland3 prong. State v. Taylor, 738 So. 2d 988 (Fla. 2d DCA 1999); see also Demontalvo v. Dixon,…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lott v. State, 931 So. 2d 807 (Fla. 2006)
- Clandyve Simon v. State, 47 So. 3d 883 (Fla. 3d DCA 2010)
- Visger v. State, 953 So. 2d 741 (Fla. 4th DCA 2007)
- Loudermilk v. State, 33 So. 3d 779 (Fla. 4th DCA 2010)
- Hayes v. State, 79 So. 3d 230 (Fla. 2d DCA 2012)