JOHN PATRICK LEONARDI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Leonardi appealed the denial of his Rule 3.850 motion for postconviction relief alleging ineffective assistance of counsel. The appellate court affirmed the denial of most claims but reversed the summary denial of his first claim regarding trial counsel's failure to call witness Gino Giardina, finding it facially insufficient rather than wholly meritless, and remanded for an opportunity to cure the deficiency.
The court held that Leonardi's first claim was facially insufficient because it failed to allege that the witness would have been available to testify at trial, which is a required element of such claims. However, because the deficiency is correctable, the summary denial should be reversed and the case remanded to allow Leonardi an opportunity to amend the motion.
[1] A postconviction motion alleging ineffective assistance of counsel for failing to call a witness must identify the witness, state the substance of their testimony, and de…
[2] A facially sufficient postconviction motion alleging ineffective assistance of counsel for failing to call a witness must also assert that the witness would have been ava…
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the legal standard for ineffective assistance claims based on failure to call a witness
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Join FLexlaw to unlock all legal intelligenceLeonardi filed a postconviction motion under Florida Rule of Criminal Procedure 3.850 alleging ineffective assistance of counsel. His first claim asse…
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John Patrick Leonardi appeals the trial court’s order summarily denying his motion for postconviction relief alleging ineffective assistance of counsel, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of Leonardi’s motion, except as to claim one. As to this first claim, we conclude that it was facially insufficient and, therefore, reverse the summary denial to provide Leonardi an opportunity to correct the deficiency.
In his first claim, Leonardi asserted that his trial counsel was ineffective *1076for 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 following: (1) the identification of the witness; (2) the substance of the witness’s testimony; and (3) a description of the prejudice suffered due to the lack of the testimony by the witness at trial. Tyler v. State, 793 So.2d 137, 141 (Fla. 2d DCA 2001) (citing Odom v. State, 770 So.2d 195, 197 (Fla. 2d DCA 2000)). Additionally, a facially sufficient postconviction motion alleging the ineffectiveness of counsel for failing to call a witness must also include an assertion that the witness would, in fact, have been available to-testify at trial. Nelson v. State, 875 So.2d 579, 584 (Fla.2004).
In the instant case, Leonardi failed to allege in his postconviction motion that the witness, Giardina, would háve been available to testify at trial. A defendant who has filed a legally insufficient rule 3.850 motion must be given at least one opportunity to correct the deficiency, unless it is apparent that the defect cannot be corrected. Luckey v. State, 979 So.2d 353, 355 (Fla. 5th DCA 2008) (citing Spera v. State, 971 So.2d 754 (Fla.2007)); Fla. R.Crim, P. 3.850(f). Because the pleading deficiency in claim one may be correctable, we reverse the summary denial and remand with directions that the trial court provide Leonardi sixty days to amend claim one of his motion, if, in good faith; he can do so.
AFFIRMED in part; REVERSED in part; and REMANDED.
ORFINGER, WALLIS, and LAMBERT, JJ., concur.
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Osorio v. State, 233 So. 3d 516 (Fla. 2d DCA 2017)…a final, appealable order is entered. Fla. R. Crim. P. 3.850(f)(3). Nothing in the postconvietion record demonstrates that Mr. Osorio could not in good faith amend ground two to allege a facially sufficient claim for relief. See Leonardi v. State, 199 So. 3d 1075, 1076 (Fla. 5th DCA 2016) (“A defendant who has filed a legally insufficient rule 3.850 motion must be given at least one opportunity to correct the deficiency, unless it is apparent that the defect cannot be corrected.”). Accordingly, we reverse th…
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Payne v. State, 275 So. 3d 701 (Fla. 5th DCA 2019)…at 878 (citing Spellers v. State, 993 So. 2d 1117, 1118 (Fla. 5th DCA 2008)), we remand with instructions that the trial court strike Ground O and provide Payne with sixty days to amend. See Fla. R. Crim. P. 3.850(f)(3); see also Leonardi v. State, 199 So. 3d 1075, 1076 (Fla. 5th DCA 2016) ("A defendant who has filed a legally insufficient rule 3.850 motion must be given at least one opportunity to correct the deficiency, unless it is apparent that the defect cannot be corrected." (citing Luckey v. State, 979…
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Nelson v. State, 875 So. 2d 579 (Fla. 2004)
- Luckey v. State, 979 So. 2d 353 (Fla. 5th DCA 2008)
- Earon L. Tyler v. State, 793 So. 2d 137 (Fla. 2d DCA 2001)
- Odom v. State, 770 So. 2d 195 (Fla. 2d DCA 2000)
- Gutierrez v. State, 27 So. 3d 192 (Fla. 5th DCA 2010)
- Santos v. State, 152 So. 3d 817 (Fla. 5th DCA 2014)