ROBERTO SUAREZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the defendant's allegations were insufficient to warrant an evidentiary hearing on his motion for relief.
The defendant, convicted of second-degree murder, filed a motion for relief alleging ineffective assistance of counsel for failing to call a witness a…
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PER CURIAM.
These consolidated appeals are taken by Roberto Suarez, the defendant, from an order of the trial court denying a motion for relief pursuant to Rule 3.850, Fla.R.Crim.P. Suarez was charged by indictment with murder in the first degree. He was tried by jury, found guilty of murder in the second degree, convicted of murder in the second degree and sentenced to twenty five years in the state penitentiary. On appeal to this court, his conviction was affirmed.
The thrust of the Rule 3.850 motion to vacate judgment and sentence, the subject of this appeal, is that Suarez was denied effective representation of counsel due to the failure of his trial attorney “. to call a vital Defense Witness and to secure a Police Report in connection with said witness’ testimony . . . ” This witness, contends the defendant, could have testified as to the victim’s reputation in the community as a violent person, thereby supporting a defense of self defense.
It is reflected in the record of the trial proceedings as well as in the court’s findings in the order denying the Rule 3.850 motion, that defendant Suarez had private counsel throughout the entire trial of the cause. We agree with the court’s conclusion that the allegations in the motion are not sufficient to entitle the defendant to an evidentiary hearing. Absent extraordinary circumstances, failure of counsel to call a witness is not a ground for collateral attack. Swindle v. State, 202 So. 2d 132 (Fla. 3rd DCA 1967); Nelson v. State, 281 So. 2d 49 (Fla. 3rd DCA 1973). The record sub judice fails to demonstrate extraordinary circumstances.
In addition, as a general rule, a defendant may not contest the competency of privately retained counsel. Everett v. State, 161 So. 2d 714 (Fla. 3rd DCA 1964); Cappetta v. Wainwright, 203 So. 2d 609 (Fla.1967); Dickenson v. State, 261 So. 2d 561 (Fla. 3rd DCA 1972).
Affirmed.
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Clement Lemmon Edwards v. State, 393 So. 2d 597 (Fla. 3d DCA 1981)…denied, 378 So. 2d 344 (Fla.1979); O’Quinn v. State, 364 So. 2d 775 (Fla. 1st DCA 1978), cert. denied, 373 So. 2d 460 (Fla.1979); Capo v. State, 363 So. 2d 410 (Fla. 1st DCA 1978); Crespo v. State, 339 So. 2d 697 (Fla. 3d DCA 1976); Suarez v. State, 338 So. 2d 546 (Fla. 3d DCA 1976); Belsky v. State, 231 So. 2d 256 (Fla. 3d DCA 1970); Brown v. State, 223 So. 2d 337 (Fla. 3d DCA), cert. denied, 229 So. 2d 866 (Fla.1969), cert. denied, 397 U.S. 969, 90 S.Ct. 1009, 25 L.Ed.2d 262 (1970); Frizzell v. State, 213 S…
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State v. Garmise, 382 So. 2d 769 (Fla. 3d DCA 1980)…4 (Fla. 3d DCA 1964); Farmer v. State, 366 So. 2d 1271 (Fla. 4th DCA 1979); O’Quinn v. State, 364 So. 2d 775 (Fla. 1st DCA 1978); Capo v. State, 363 So. 2d 410 (Fla. 1st DCA 1978); Crespo v. State, 339 So. 2d 697 (Fla. 3d DCA 1976); Suarez v. State, 338 So. 2d 546 (Fla. 3d DCA 1976); Belsky v. State, 231 So. 2d 256 (Fla. 3d DCA 1970); Brown v. State, 223 So. 2d 337 (Fla. 3d DCA 1969); Frizzell v. State, 213 So. 2d 293 (Fla. 2d DCA 1968); Ford v. State, 210 So. 2d 33 (Fla. 2d DCA 1968); Simpson v. State, 164 S…
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Cooley v. State, 642 So. 2d 108 (Fla. 3d DCA 1994)…appellant, Mr. Russell is a cousin of the investigating officer. Absent extraordinary circumstances, failure of counsel to call a witness is not a ground for collateral attack. See Roth v. State, 479 So. 2d 848 (Fla. 3d DCA 1985); Suarez v. State, 338 So. 2d 546 (Fla. 3d DCA 1976). The record sub judiee fails to demonstrate extraordinary circumstances as there was ample evidence contradicting the alleged testimony of the two witnesses. Appellant has failed to demonstrate that trial counsel’s decision not to…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cappetta v. Louie L. Wainwright, 203 So. 2d 609 (Fla. 1967)
- Everett v. State, 161 So. 2d 714 (Fla. 3d DCA 1964)
- Alton Glenn Dickenson v. State, 261 So. 2d 561 (Fla. 3d DCA 1972)
- Swindle v. State, 202 So. 2d 132 (Fla. 3d DCA 1967)
- Nelson v. State, 281 So. 2d 49 (Fla. 3d DCA 1973)