PATRICK-HENRY TALBERT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Patrick-Henry Talbert appeals the trial court's summary denial of his Rule 3.850 motion for postconviction relief, arguing his counsel was ineffective for failing to object to prosecutorial misconduct. The Second District reversed and remanded, holding that the trial court erred by summarily denying the ineffective assistance claim without addressing the preservation of the issue.
The trial court erred in summarily denying the ineffective assistance claim. On remand, the trial court must determine whether trial counsel was ineffective in failing to object to the improper closing argument and, if so, whether there is a reasonable probability that the omission affected the trial outcome.
[1] A claim of prosecutorial misconduct, if not preserved by a contemporaneous objection, may be raised in a motion for postconviction relief as a claim of ineffective assist…
[2] A trial court cannot summarily deny a claim of ineffective assistance of counsel based on a prosecutor's alleged misconduct without attaching record attachments demonstra…
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 trial court is correct that prosecutorial misconduct should be addressed on appeal, but no documents were attached to the order denying relief to show that Gadson's counsel preserved the issue for appeal with contemporaneous objections.”
Establishes the court's holding that while prosecutorial misconduct is generally an appellate issue, a postconviction claim of ineffective assistance requires examination of whether the issue was preserved through objection.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceTalbert was convicted in 1999 of racketeering, fraudulent sale of securities, and other offenses. His direct appeal was affirmed in 2001. In his postc…
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ALTENBERND, Chief Judge.
Patrick-Henry Talbert appeals the trial court’s order summarily denying his timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Mr. Talbert’s motion contains two claims. We affirm without further comment the trial court’s order denying claim two, but reverse and remand for further proceedings concerning claim one.
Mr. Talbert was convicted in 1999 of racketeering, fraudulent sale of securities, and numerous other offenses. We affirmed his direct appeal in 2001. Talbert v. State, 791 So. 2d 476 (Fla. 2d DCA 2001) (table decision). In his motion for post-conviction relief, Mr. Talbert’s first claim stated that the prosecutor repeatedly called him a liar and argued that Mr. Talbert was a minister who was violating the commandment, “Thou shalt not lie.” He argued that his lawyer was ineffective because he failed to object to this prosecutorial misconduct. The trial court summarily denied this portion of the motion without attaching any portion of the record, explaining that prosecutorial misconduct should be raised on direct appeal and not in a motion for postconviction relief. The trial court’s order cited to this court’s opinion in Gadson v. State, 773 So. 2d 1183 (Fla. 2d DCA 2000). However, this court in Gadson reversed an order virtually identical to the order on appeal. In Gadson, we stated:
Gadson alleges that his trial counsel was ineffective for failing to object contemporaneously and with specificity to improper comments made by the prosecutor during closing arguments. The trial court denied the claim stating that prosecutorial misconduct should be addressed on direct appeal. The trial court is correct that prosecutorial misconduct should be addressed on appeal, but no documents were attached to the order denying relief to show that Gad-son’s counsel preserved the issue for appeal with contemporaneous objections. If counsel did not preserve the issue, it could not have been addressed on appeal unless counsel’s ineffectiveness in not objecting was apparent from the face of the record. See Eure v. State, 764 So. 2d 798 (Fla. 2d DCA 2000). On remand, the trial court must determine whether Gadson’s trial counsel was ineffective in not objecting to improper closing argument and, if so, whether there is a reasonable probability that the omissions affected the outcome of the trial.
773 So. 2d at 1183-84.
We reverse and remand this case with the same directions that we gave to the trial court in Gadson.
COVINGTON and KELLY, JJ., Concur.
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Citator
Authorities Cited
- Eure v. State, 764 So. 2d 798 (Fla. 2d DCA 2000)
- Tarris Gadson v. State, 773 So. 2d 1183 (Fla. 2d DCA 2000)