FRANK L. CLEMENTS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Clements sought to vacate his robbery conviction based on ineffective assistance of counsel, alleging his public defender failed to investigate witnesses who could exonerate him and was unprepared for trial. The court affirmed the trial court's denial of an evidentiary hearing, finding the motion defectively pleaded because it failed to identify what exculpatory testimony the witnesses would provide.
The court affirmed the trial court's denial of an evidentiary hearing, holding that a motion asserting ineffective assistance of counsel must contain more than conclusory allegations that witnesses 'certainly could have vindicated' the defendant. The motion must include either affidavits profferring the prospective testimony or factual allegations showing what exculpatory testimony the witnesses would provide and a causal relationship between counsel's failure to obtain the testimony and the conviction.
[1] A motion to vacate alleging ineffective assistance of counsel must contain sufficient factual allegations to demonstrate a causal relationship between the alleged incompe…
[2] A trial court is not required to speculate about the nature of prospective testimony when ruling on a motion for an evidentiary hearing.
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Join FLexlaw to unlock all legal intelligence“The problem we perceive is the inadequacy of the post-trial motion in asserting this conclusion that the 'several witness(es) . . : certainly could have vindicated (defendant) of the offense charged.' There was no proffer of the prospective testimony by affidavit nor even any factual allegation as to what this exculpatory testimony might be.”
Establishes the standard that motions for ineffective assistance must contain specific information about witness testimony, not merely conclusory allegations.
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Join FLexlaw to unlock all legal intelligenceClements was arrested in Dade County in December 1971 and charged with robbery in Broward County. A public defender was appointed at arraignment on Ja…
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COBB, WARREN, Associate Judge.
In this case the appellant filed a motion to vacate, alleging the denial of effective assistance of counsel. That motion was denied by the trial court without evidentiary hearing, the order of denial reciting that the court had reviewed the files and records in the case. The motion contained the following allegations:
“The plaintiff was the Defendant at trial court, he was arrested in Dade County December 14, 1971 and was charged via Information with a single offense of robbery in Broward County Juanuar (sic) 1972 a independant offense from Dade County.
“On January 27, 1972 the same said went before arraignment in this county, the Public Defenders office was appointed to represent the plaintiff, however, counsel never talked to plaintiff. The plaintiff was immediately sent back to Dade County.
“Then on March 15, 1972 the plaintiff was again forwarded to Broward, this time for actual trial before Judge Futch. At the jail on the same night of the 15th, counsel informed his client of trial the following morning, March 16, 1972. Due to counsel and plaintiffs lack of communication, plaintiff informed counsel of several witness (sic) who certainly could have vindicated him of the offense charged. Counsel sought to contact these witnesses with plaintiff by phone. This was without any avail, upon the mourning (sic) of the 16th, counsel informed the court of this newly discovered evidence and moved accordingly for a continuance to get these witness (sic) from Dade to Broward County, the court denied the same. Plaintiff thus asked the court per se for a continuance and was also denied. Trial commenced subsequently, but not before counsel informed the Honorable Court that he [counsel] due to this information he was supplied with by plaintiff made him inadequate to present his case competently for the plaintiff, counsel also admitted he was unable to consult with plaintiff due to his office being in Bro-ward County and his client being in Dade, plus the fact counsel was out of his office some period of time vacationing. Counsel candidly stated he was not prepared. See: Transcript Pages 1-5.”
The problem we perceive is the inadequacy of the post-trial motion in asserting this conclusion that the “several witness(es) . . : certainly could have vindicated (defendant) of the offense charged.” There was no proffer of the prospective testimony by affidavit nor even any factual allegation as to what this exculpatory testimony might be. There is nothing in the motion to show admissible evidence would be forthcoming from the witnesses. Hence, there is no showing before this Court of a causal relationship between the failure to obtain the testimony at trial of these witnesses (the alleged incompetence of counsel) and the defendant’s conviction.
The trial court should not have to speculate as to the nature of this testimony when it is asked to grant an evidentiary hearing.
Therefore, we see no reason of record to reject the denial by the trial court of an evidentiary hearing based on a motion defective in form. See State v. Reynolds, 238 So. 2d 598 (Fla.1970) and Hons v. State, 285 So. 2d 66 (Fla.2d DCA 1973).
AFFIRMED.
CROSS, J., and SMITH, ROBERT P„ Jr., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ables v. State, 404 So. 2d 137 (Fla. 5th DCA 1981)…on to vacate, Abies alleged that: I advised my Attorney of a number of witnesses that had testimony for the de-fence. Mr. Chester did not talk nor Subpoena any of my said witnesses. A similar allegation was raised in the case of Clements v. State, 340 So. 2d 1182 (Fla. 4th DCA 1976). In Clements, the court stated that the motion to vacate was inadequate because: There was no proffer of the prospective testimony by affidavit nor even any factual allegation as to what this exculpatory testimony might be. Ther…
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McMILLIAN v. State, 411 So. 2d 1372 (Fla. 5th DCA 1982)…ch failure on trial counsel’s part. A motion which fails to do so is fatally deficient and should be summarily denied without the necessity of an eviden-tiary hearing. See, e.g., Ables v. State, 404 So. 2d 137 (Fla. 5th DCA 1981); Clements v. State, 340 So. 2d 1182 (Fla. 4th DCA 1976). Such a requirement should equally apply to an allegation that trial counsel did not interview the prisoner, since the prisoner must necessarily now know the facts, if any, that he is claiming counsel failed to discover and prese…
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Roth v. State, 479 So. 2d 848 (Fla. 3d DCA 1985)…ef prayed.” This court affirmed the trial court’s order finding the motion was “insufficient to support a claim for relief.” Roth v. State, 435 So. 2d 274 (Fla. 3d DCA 1983). See Ables v. State, 404 So. 2d 137 (Fla. 5th DCA 1981); Clements v. State, 340 So. 2d 1182 (Fla. 4th DCA 1976). Subsequently, the defendant filed the present Rule 3.850 motion alleging the same ground for relief. This motion, however, had attached to it the affidavits of the two potential witnesses. In these affidavits, the affiants indi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Madison Lee Reynolds, 238 So. 2d 598 (Fla. 1970)
- Cataldo v. Rader & Assocs., 285 So. 2d 66 (Fla. 3d DCA 1973)