JONATHAN GALLO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2015-01-07
No. 4D14-3424
DAMOORGIAN, C.J., WARNER and FORST, JJ., concur.
183 So. 3d 1079 Florida District Court of Appeal, Fourth District (2015)

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Synopsis

Jonathan Gallo appealed the summary denial of his Rule 3.850 post-conviction motion claiming ineffective assistance of counsel. The court affirmed the denial of six grounds but reversed and remanded the fifth ground, which involved failure to investigate witnesses regarding the victim's reputation for violence in a self-defense claim.


Holding

The court affirmed the summary denial of six grounds but reversed and remanded ground five because: (1) although Gallo's claim was legally insufficient as stated, the trial court abused its discretion by summarily denying it without offering an opportunity to amend, and (2) testimony by the victim's sister about a previous hospitalization did not constitute proper reputation evidence for violence.


Headnotes

[1] The reputation of a victim for violence is admissible when a defendant asserts self-defense to demonstrate the victim was the aggressor.

[2] Reputation evidence is admissible to show the victim's propensity for violence regardless of the defendant's knowledge of that reputation.

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Key Quotes

“the reputation of the victim for violence is admissible when a defendant is asserting self-defense, to demonstrate that the victim was the aggressor and not the defendant. This evidence is admissible regardless of the defendant's knowledge of that reputation.”

Establishes that victim reputation for violence is admissible in self-defense cases under Antoine v. State

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Facts & Procedural History

Gallo filed a Rule 3.850 motion asserting seven grounds for post-conviction relief. In ground five, he claimed his trial counsel failed to investigate…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Jonathan Gallo appeals the summary denial of his rule 3.850 motion in which he asserted seven grounds for post-conviction relief. We affirm without discussion the trial court’s summary denial except as to ground number five. In that ground, Gallo claimed ineffective assistance of trial counsel for failure to investigate and call five named witnesses regarding the victim’s reputation for violence. Gallo alleged that the testimony of these witnesses would have supported his claim of self-defense as the victim was the aggressor.

In Antoine v. State, 138 So.3d 1064 (Fla. 4th DCA 2014), this Court held that the reputation of the victim for violence is admissible when a defendant is asserting self-defense, to demonstrate that the victim was the aggressor and not the defendant. This evidence is admissible regardless of the defendant’s knowledge of that reputation. Id. at 1074. However, to admit reputation evidence under section 90.405(1), Florida Statutes, a witness must establish “that the community from which the reputation testimony is drawn is sufficiently broad to provide the witness with adequate knowledge to give a reliable assessment.” Larzelere v. State, 676 So.2d 394, 399 (Fla.1996). “[Reputation evidence ‘must be based on discussions among a broad group of people so that it accurately reflects the person’s character, rather than the biased opinions or comments of ... a narrow segment of the community.’ ” Id. at 400 (citation omitted). Moreover, reputation testimony must be based on more than “mere personal opinion, fleeting encounters, or rumor.” Rogers v. State, 511 So.2d 526, 530 (Fla.1987); see also Rigterink v. State, 66 So.3d 866, 895 (Fla.2011) (holding that a witness’ testimony presented in terms of his “own opinion and generalized personal experiences” was not a proper way to establish reputation evidence in Florida); Simon v. State, 38 So.3d 793, 795 (Fla. 4th DCA 2010) (setting forth the predicate that must be laid to admit testimony of a victim’s reputation for violence), quashed on other grounds, 160 So.3d 898, 2015 WL 128294, 40 Fla. L. Weekly S13 (Fla. Jan. 7, 2015).

Gallo’s claim on this ground in his rule 3.850 motion was legally insufficient because he did not specify what these five individual witnesses would have testified. Nelson v. State, 875 So.2d 579, 583 (Fla.2004). However, the trial court abused its discretion in summarily denying this claim without providing at least one opportunity to amend under Spera v. State, 971 So.2d 754, 761 (Fla.2007).

*1081We disagree with the State’s argument that no prejudice resulted because other evidence of the victim’s alleged propensity for violence was presented. Testimony by the victim’s sister that the victim previously had been hospitalized for brain injury relating to an altercation did not necessarily constitute evidence of the victim’s reputation for violence.

Therefore, we reverse and remand with directions to the trial court to allow Gallo an opportunity to amend ground five. See Fla. R. Crim. P. 3.850(f)(2). To state a sufficient claim, Gallo must: (1) identify the witnesses; (2) allege that they were available to testify; (3) explain the testimony that could have been elicited from the witnesses; and (4) explain how the failure to call the witnesses prejudiced the case. See Nelson, 875 So.2d at 583. If an amended ground five is not timely filed, or if the amended claim is still insufficient, the trial court has discretion to summarily deny the claim with prejudice. See id. at 583-84.

Affirmed in part, reversed and remanded in part.

DAMOORGIAN, C.J., WARNER and FORST, JJ., concur.


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