JAMES WILLIAM JOSEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James William Josey appeals the denial of his Rule 3.850 post-conviction motion, claiming he was deprived of compulsory process for witnesses and a jury instruction on a lesser included offense. The appellate court finds that these issues cannot be resolved on appeal and must be addressed in an evidentiary hearing in the trial court.
The court cannot determine on appeal whether counsel was grossly incompetent or made prudent strategic decisions. The issues raised regarding the unavailable witness and missing jury instruction require a full evidentiary hearing in the circuit court to resolve.
[1] A motion for postconviction relief alleging ineffective assistance of counsel must be resolved after a full evidentiary hearing when the record does not conclusively show…
[2] A defendant's constitutional right to compulsory process for obtaining witnesses may be implicated by the failure to secure the attendance of a witness whose testimony is…
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Join FLexlaw to unlock all legal intelligence“We cannot here, on appeal, determine whether Josey's counsel was grossly incompetent or a prudent counsel who made some strategic decisions.”
Establishes that the appellate court lacks the ability to resolve ineffective assistance of counsel claims on appeal without an evidentiary hearing.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJosey was convicted of resisting arrest with violence after a one-day trial. Deputy Joe Ward, allegedly vital to Josey's defense, was subpoenaed twice…
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BOARDMAN, Judge.
The appellant, James William Josey, has brought a timely appeal from a denial, without hearing, of his Rule 3.850, CrPR, motion filed in the circuit court. The appellant’s conviction was affirmed in an appeal on the merits by this court in Josey v. State, Fla.App.2d, 1973, 284 So. 2d 704.
In his pro se efforts in this cause Josey contends he was deprived of his constitutional right to have compulsory process for witnesses 1 and that he was deprived of an instruction to the jury on a lesser included charge. In light of the fact that the motion and appeal filed herein were filed by the appellant in propria persona, we view them with the liberality afforded pro se briefs2 and conclude the appellant may have been attempting to allege incompetence of counsel.
We cannot here, on appeal, determine whether Josey’s . counsel was grossly incompetent3 or a prudent counsel who made some strategic decisions. Josey contends that the testimony of Deputy Joe Ward was vital to his defense, yet two subpoenas that had been issued were not served on Ward by the sheriff’s department.4 Josey’s counsel argued vociferously during the trial that Ward could clear his client, yet he didn’t preserve this question for appellate review. This action may have been a calculated risk on the part of counsel to make an unavailable witness better for his purposes than if that witness were produced. On the other hand, failure to insist on the witness’ presence could very well have been an error on the part of counsel. The same rationale may be true on the question of jury instructions. The jury was presented with the option of convicting the appellant of resisting arrest with violence or acquitting him. This may have been a knowing, all or nothing gamble, or it may have been oversight of the existence of the necessari ly lesser included offense of resisting arrest without violence on the part of trial counsel.
These questions can only be resolved after a full evidentiary hearing in the circuit court.
Reversed and remanded.
HOBSON, A. C. J., and MANN, J. (Ret.),-concur. . Article 1, Section 16, Constitution of Florida, 1968.
. Thomas v. State, Fla.App.2nd, 1964, 164 So. 2d 857.
. Bankston v. State, Fla.App.2nd, 1973, 279 So. 2d 326.
.Joe Ward was under subpoena by the state. When it became apparent shortly before the trial commenced that Ward would not appear, the defense issued an instanter subpoena for Ward. The trial was completed in one day.
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Gust v. State, 558 So. 2d 450 (Fla. 1st DCA 1990)…egality of the prisoner’s detention in order to ascertain all possible grounds upon which the prisoner might claim to be entitled to relief. Sanders v. United States, 373 U.S. 1, 22-24, 83 S.Ct. 1068, 1081, 10 L.Ed.2d 148 (1963). In Josey v. State, 301 So. 2d 489 (Fla. 2d DCA 1974), the pro se 3.850 appellant alleged denial of compulsory process for witnesses and denial of a jury instruction on a lesser included offense. His motion was summarily denied. The district court reversed and remanded for an eviden-…
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Lopez v. State, 452 So. 2d 654 (Fla. 4th DCA 1984)…ve instructions on lesser-included offenses. The testimony of counsel, considered together with the court’s observations, constitute a sufficient predicate for the trial court to deny the claim of ineffectiveness in this respect. Cf. Josey v. State, 301 So. 2d 489 (Fla. 2d DCA 1974), wherein the court was concerned that the decision to waive “may have been a knowing, all or nothing gamble, or it may have been oversight of the existence of the necessarily lesser included offense ....” We have also considered e…
Authorities Cited
- Levine Thomas v. State, 164 So. 2d 857 (Fla. 2d DCA 1964)
- Bankston v. State, 279 So. 2d 326 (Fla. 2d DCA 1973)
- State of Fla. Dep't OF Transp. v. Fairfield Inv. Co., 284 So. 2d 704 (Fla. 1st DCA 1973)