SANFORD DUHART, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Duhart appealed his conviction for unlawful firearm possession by a convicted felon, arguing ineffective assistance of counsel for failing to adequately challenge the admissibility of the handgun used as evidence. The Florida appellate court affirmed, finding no deficiency in counsel's performance and rejecting arguments that re-litigated a previously decided suppression issue.
The court rejected all three ineffective assistance of counsel claims. Objecting at trial would have been futile since the suppression motion had already been denied; counsel's conduct at a full suppression hearing fell within the range of reasonable professional assistance; and Duhart failed to allege what witnesses could have offered or how testimony would have changed the outcome.
[1] A claim of ineffective assistance of counsel based on counsel's failure to object to evidence previously ruled admissible after a full pretrial suppression hearing is fut…
[2] Re-arguing an issue previously decided on direct appeal under the guise of ineffective assistance of counsel is impermissible.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the admissibility of the handgun had already been decided adversely to the defendant pretrial, and defense counsel had already done what he could to suppress that evidence to no avail. We agree with the State in its response that objecting to admission of the handgun at trial would have been futile.”
Establishes that a futile objection cannot support an ineffective assistance claim when the issue was already fully litigated.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuhart was charged with possession of cocaine, carrying a concealed firearm, and unlawful firearm possession as a convicted felon. The firearm charge …
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FLETCHER, Judge.
Defendant Duhart was charged with (1) possession of cocaine, (2) carrying a concealed firearm, and (3) unlawful possession of a firearm by a convicted felon. Charge 3 was severed and a jury found Duhart guilty of unlawful possession of a firearm. Duhart’s attorney filed a pre-trial motion to suppress the handgun and the motion was denied after a full hearing on the issue. Duhart filed an appeal, alleging that the trial court erred by denying his motion to suppress. This court affirmed. Duhart v. State, 736 So. 2d 1195 (Fla. 3d DCA 1999).
In this postconviction relief appeal, Duhart first argues that his defense counsel was ineffective for failing to object when the handgun was introduced at trial. However, the admissibility of the handgun had already been decided adversely to the defendant pretrial, and defense counsel had already done what he could to suppress that evidence to no avail. We agree with the State in its response that objecting to admission of the handgun at trial would have been futile. Additionally, this issue was previously reviewed on direct appeal and we found no error in the trial court’s denial of the motion to suppress. Re-arguing the issue in the guise of ineffective assistance of counsel is not permitted.
Second, Duhart claims that his trial counsel was ineffective for failing to argue a proper motion to suppress where he engaged in little pre-trial investigation, and presented no witnesses at the suppression hearing. Once again, where there was a full suppression hearing at which defense counsel argued but lost, defendant’s assertions do not overcome the presumption that his counsel’s conduct fell within the range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Third, Duhart argues that his counsel was ineffective because he failed to investigate or present witnesses at the suppression hearing. However, Duhart fails to allege the nature of the testimony the witnesses could have offered, or how such testimony could have changed the outcome of the trial. Where Duhart states only general allegations, this issue must fail.
Affirmed.
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Laurito v. State, 120 So. 3d 203 (Fla. 5th DCA 2013)…t and prejudicial, such that the trial court should have granted relief on this claim. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Finally, we note that both the State and the trial court cite Duhart v. State, 778 So. 2d 462, 463-64 (Fla. 3d DCA 2001), for the proposition that when there is a “full suppression hearing at which defense counsel argued but lost” a defendant cannot later overcome the presumption that counsel provided effective representation with respect to…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)