KING SOLOMON WARE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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King Solomon Ware was convicted of sexual offenses against a minor. He appealed the summary denial of his post-conviction relief motion raising 20 grounds. The court affirmed the denial of 19 grounds but reversed and remanded one ground concerning ineffective assistance of counsel related to victim credibility testimony.
The court affirmed the summary denial of 19 grounds of the post-conviction motion but reversed the summary denial of ground 19. The court held that ground 19 was neither facially invalid nor conclusively refuted by the record, requiring either attachment of record documents that refute it or an evidentiary hearing.
[1] A trial court may permit a victim to testify about the reasons for a delayed report of sexual battery if the victim feared the defendant due to witnessing domestic violen…
[2] Ineffective assistance of counsel claims based on a failure to object to testimony must be supported by evidence that the testimony did not align with the state's proffer…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“To uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.”
Establishes the legal standard for reviewing summary denials of post-conviction relief motions.
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Join FLexlaw to unlock all legal intelligenceWare was convicted of two counts of sexual activity with a minor and two counts of lewd or lascivious molestation. The victim delayed reporting the cr…
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Appellant was convicted of two counts of sexual activity with a minor child 12 years of age or older, but less than 18 years of age by a person in familial or custodial authority, and two counts of lewd or lascivious molestation of a minor child 12 years of age or older, but less than 16 years of age. He appeals the summary denial of his supplemental third amended motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850, which raised 20 grounds for relief. We affirm the lower court’s summary denial of all issues, except for the summary denial of ground 19, which is discussed below, because each issue is either conclusively refuted by the record, legally insufficient after amendment, without merit as a matter of law, or is inherently incredible.
The victim in this case delayed reporting to law enforcement that she had been sexually battered and molested by Appellant. Anticipating an attack on her credibility, the State successfully argued, pretrial, that the victim should be allowed to testify that she did not immediately report these crimes because she was afraid of Appellant as she had witnessed him commit acts of domestic violence on her mother. Over objection, the trial court, citing to Williamson v. State, 681 So.2d 688 (Fla.1996), permitted the testimony. In ground 19, Appellant alleges that his counsel was ineffective by failing to object at trial and thereafter move for a mistrial because the victim’s trial testimony did not support the State’s proffered theory that the victim failed to timely report the crimes because she was afraid of Appellant. In response, the State recommends that this court remand ground 19 to the trial court to either attach record documents that will conclusively refute the ground or conduct an evidentiary hearing. See, e.g., McLin v. State, 827 So.2d 948, 954 (Fla.2002) (“To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.” (quoting Foster v. State, 810 So.2d 910, 914 (Fla. 2002))). We agree and reverse the summary denial of ground 19 and remand with instructions that the trial court either attach portions of the record that conclusively refute this ground or grant an evidentia-ry hearing.
AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.
ORFINGER, EVANDER and LAMBERT, JJ., concur.
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Citator
Authorities Cited
- McLIN v. State, 827 So. 2d 948 (Fla. 2002)
- Foster v. State, 810 So. 2d 910 (Fla. 2002)
- Williamson v. State, 681 So. 2d 688 (Fla. 1996)