Post Conviction Relief

AS POST-CONVICTION RELIEF

I. Standard of Review

In order to establish a claim of ineffective assistance of counsel, a defendant must meet two requirements: counsel's performance was deficient, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish the first prong under Strickland, the defendant must demonstrate that "counsel's representation fell below an objective standard of reasonableness" under "prevailing professional norms." Id. at 688, 104 S.Ct. 2052.  

To establish the second prong under Strickland, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. When reviewing a trial court's ruling after an evidentiary hearing on an ineffective assistance claim, an appellate Court gives deference to the trial court's factual findings to the extent they are supported by competent, substantial evidence, but reviews de novo the trial court's determinations of deficiency and prejudice, which are mixed questions of fact and law. See Arbelaez v. State,898 So.2d 25, 32 (Fla.2005).

Herein the Petitioner/Defendant raises several claims of error for the court to review.  These claims are supported by statements where appropriate and by physical evidence where appropriate.  The Petitioner is seeking an either the enforcement of the Eight year Florida State Prison offer[1] he was never advised of, or to have his sentence vacated.

A.        Ground 1:      Trial counsel Failed to utilize witnesses who

would have provided a complete defense to the allegations.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate both deficient performance on the part of trial counsel and prejudice to the defendant resulting from that deficient performance. See Cherry v. State,781 So.2d 1040, 1048 (Fla.2000) (citing Strickland v. Washington,466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel's performance is deficient if it falls below "an objective standard of reasonableness' based on `prevailing professional norms.'" Id. In order to establish prejudice, a defendant must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the proceedings. Id. A defendant is "not entitled to perfect or error-free counsel, only to reasonably effective counsel." Waterhouse v. State,522 So.2d 341, 343 (Fla.1988).

The issues that need be addressed in allegations relating to Trial counsels failure to investigate a witness are diverse.  Courts have dealt with these issues with mixed results, however there does appear to be a clear process today.  In the past courts have made errors relating to this issue. In Roberts v. State,825 So.2d 1046 (Fla. 1st DCA 2002) and Nelson v. State,816 So.2d 694 (Fla. 5th DCA 2002) the courts found that appellant was not entitled to relief because he "failed to prove the witness was available for trial." Actually, these cases simply support the proposition that a facially sufficient claim of ineffective assistance for failing to call a witness at trial requires an allegation that the witness is available. See Roberts, 825 So.2d at 1047 ("[A]ppellant has provided the substance of the witnesses' testimony and has alleged their availability to so testify."); Nelson, 816 So.2d at 696 ("Counsel's failure to call a witness who was unavailable to testify at trial could not logically prejudice the outcome of a defendant's trial.").

Here the Defendant was advisd that he must accept a plea deal rather thsan proceed to trial as was his wish, because his attorney told him he could not succeed in trial and because the attorney advised that he would be successful in a straight up plea to the court.  It is fundamental under the Sixth Amendment that a defendant may rely on his counsel’s assessment relating to his chances of success in trial, and the courts have held that an attorney who does not acquaint himself with all of the facts of a case cannot render this advise in a reasonable fashion.  Therefore when counsel has not picked up and review the discovery, and has not spoken to any witness listed by the defendant, counsel is rendering ineffective advise and a plea must be set aside.  INSERT CASELAW

In this case,  Petitioner points to counsel's failure to adequately and timely meet with any of the witnesses he listed. Each was available to testify at trial, none were charged with any offense, or were out of state.  Each would have responded to telephone calls from counsel, or attended trial or the sentencing hearing with a subpoena.  Trial counsel Wells was given a list of the witnesses that Hall wanted to have called in trial, the same list that Hall provided to all the predecessor counsel. 

Trial counsel did not speak to a single witness, but instead focused his time on persuading Hall to enter a straight up plea to the court. Mr.  Hall had insisted on a trial for two years, through five different attorneys.  He insisted on his innocence, and claimed that these witnesses would refute the bulk of the state claims. Mr. Wells was appointed late in the discovery process with the case on the eve of trial. There were more than 2000 pages of discovery in the state attorney’s office waiting to be picked up by Mr. Wells.  Undersigned upon being retained went to the office of the state attorney to review the voluminous discovery in the case, and discovered three complete sets of documents, the set prepared and labeled for Trial Counsel Mr. Wells had never even been picked up. 

Those documents are still stored in the State attorney’s office today, Mr. Wells rendered his advice to plea straight up to the court without reviewing those documents, or did not consulting with a single witness. INSERT CASELAW  Instead trial counsel  guaranteed that if Hall pled straight up to the court he would receive a concurrent sentence.   

Undersigned counsel contacted each of the witnesses below, only to learn that none had been spoken to by Mr. Wells.  Mr.  Mike Brown, an expert forensic accountant out of Winter Haven, Mrs. Barbara Hall who possessed all the computer records that Hall kept in his home office, as well as the machines that were stored on his property, James Taylor, who was the bookkeeper for the RBM Global iteration of the company who could provide the documents Hall wished to use in his defense as well as explain how Mr. Hall went from being an agent who placed units in various stores to an owner who had authority to lease machines himself,  Mr. Issa Assad whose company initially leased and then later sold equipment to Mr. Hall.

Each were relevant and available for testimony, yet counsel  never spoke to them.

"[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington,466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984); see also Marshall v. State,854 So.2d 1235, 1247 (Fla.2003).

"[T]he failure to call witnesses can constitute ineffective assistance of counsel if the witnesses may have been able to cast doubt on the defendant's guilt, and the defendant states in his motion the witnesses' names and the substance of their testimony, and explains how the omission prejudiced the outcome of the trial." Ford v. State,825 So.2d 358, 360-61 (Fla.2002) (quoting Jackson v. State,711 So.2d 1371, 1372 (Fla. 4th DCA 1998)).