JOSE SANTOS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jose Santos appeals the summary denial of his postconviction motion alleging ineffective assistance of counsel. The court reverses, finding that Santos' claims regarding counsel's failure to investigate and present testimony from two witnesses are not conclusively refuted by the record and warrant an evidentiary hearing.
Santos' first two claims of ineffective assistance of counsel are not conclusively refuted by the record. The court rejected the State's argument that the witnesses' testimony would be cumulative to the victim's equivocal trial testimony, as equivocal identification is materially different from an outright recantation. The court also rejected the argument that failure to call the witnesses constituted reasonable trial strategy without an evidentiary hearing.
[1] A motion for postconviction relief should not be summarily denied if the claims raised are not conclusively refuted by the record.
[2] Failure to investigate, interview, and present the testimony of witnesses who could cast doubt on the defendant's guilt may constitute ineffective assistance of counsel.
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Join FLexlaw to unlock all legal intelligence“Equivocal identification testimony at trial is materially different from an outright recantation of a prior identification.”
Establishes that the witnesses' testimony would not be cumulative to the victim's equivocal trial testimony
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Join FLexlaw to unlock all legal intelligenceSantos was convicted after jury trial of robbery with a deadly weapon and aggravated battery with a deadly weapon. The victim identified Santos in a p…
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Jose Santos appeals from the summary denial of his Florida Rule of Criminal Procedure 3.850 Motion for Postconviction Relief. We conclude that Santos’ first two claims1 are not conclusively refuted by the record and, accordingly, reverse.
Santos was convicted, after a jury trial, of robbery with a deadly weapon and aggravated battery with a deadly weapon. His convictions were per curiam affirmed by this court. Santos v. State, 66 So.3d 949 (Fla. 5th DCA 2011).
*819In his postconviction motion, Santos alleged that his trial counsel was ineffective for failing to investigate, interview, and present the testimony of Ms. Donella and Ms. Garcia. These potential witnesses would allegedly have testified that the victim had told them that Santos was not the individual who had attacked and robbed him. Santos further claimed that he had made his attorney aware of these potential witnesses and their anticipated testimony prior to trial.
The record reflects that the victim had identified Santos in a pretrial photo array, but equivocated in his identification of Santos at trial. The State suggests that the testimony of these two aforementioned witnesses would have been cumulative to the victim’s testimony. We disagree. Equivocal identification testimony at trial is materially different from an outright recantation of a prior identification.
We also reject the State’s argument that the record established that defense counsel’s failure to call these -witnesses was a reasonable trial strategy. The failure to call a witness can constitute ineffective assistance of counsel if the witness might be able to cast doubt on the defendant’s guilt. Gutierrez v. State, 27 So.3d 192, 194 (Fla. 5th DCA 2010). Although defense counsel is entitled to broad deference regarding trial strategy, a finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing. Hamilton v. State, 860 So.2d 1028, 1029 (Fla. 5th DCA 2003).
REVERSED and REMANDED for an evidentiary hearing.
COHEN and WALLIS, JJ„ concur.
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Downs v. State, 227 So. 3d 694 (Fla. 5th DCA 2017)…unsel was deficient in failing to investigate this potential witness. Because this facially sufficient claim was not refuted by the records attached to the postconviction court’s order, summary denial of ground two was improper. See Santos v. State, 152 So. 3d 817, 819 (Fla. 5th DCA 2014) (“The failure to call a witness can constitute ineffective assistance of counsel if the witness might be able to cast doubt on the defendant’s guilt. Although defense counsel is entitled to broad deference regarding trial st…
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Leonardi v. State, 199 So. 3d 1075 (Fla. 5th DCA 2016)…fective [*1076] for failing to call a witness, Gino Giardina, to testify at trial. “The failure to call a witness can constitute ineffective assistance of counsel if the witness might be able to east doubt on the defendant’s guilt.” Santos v. State, 152 So. 3d 817, 819 (Fla. 5th DCA 2014) (citing Gutierrez v. State, 27 So. 3d 192, 194 (Fla. 5th DCA 2010)). For a claim of ineffective assistance of counsel based on the failure to investigate and call a witness at trial, a defendant must allege and show the foll…
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White v. State, 226 So. 3d 349 (Fla. 5th DCA 2017)…is was effective trial strategy because the jury convicted him of lesser charges and found he did not personally possess, carry, display, or use a firearm. A “trial strategy” evaluation typically requires an evidentiary hearing. See Santos v. State, 152 So. 3d 817, 819 (Fla. 5th DCA 2014). Furthermore, neither that implicit trial strategy finding, nor the records attached, directly address Appellant’s claim that if trial counsel had properly advised him, he would not have testified, which would have kept the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gutierrez v. State, 27 So. 3d 192 (Fla. 5th DCA 2010)
- Hamilton v. State, 860 So. 2d 1028 (Fla. 5th DCA 2003)