DONNIE BERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donnie Berry appeals the summary denial of a postconviction motion alleging ineffective assistance of counsel. The Florida appellate court finds reversible error on two grounds: counsel's failure to suppress suggestive victim identifications and counsel's failure to raise a Brady issue regarding lost evidence, while affirming the trial court's denial on other grounds.
The court reversed and remanded on two grounds. First, concerning the suggestive identification procedure, counsel was ineffective in failing to move to suppress identifications, and the trial court must apply relevant Simmons and Edwards factors on remand. Second, regarding the Brady issue, if Berry's allegations are true—that the perpetrator's shirt was in the State's constructive custody, potentially useful to his defense, and destroyed or lost in bad faith—he is entitled to relief.
[1] A defendant may establish reversible error in post-conviction relief proceedings by demonstrating ineffective assistance of counsel in failing to move to suppress a victi…
[2] A defendant may establish reversible error in post-conviction relief proceedings by demonstrating ineffective assistance of counsel in failing to raise a Brady issue due…
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Join FLexlaw to unlock all legal intelligence“Berry has established reversible error with respect to two grounds...we reverse and remand for either an evidentiary hearing or attachment of portions of the record conclusively refuting Berry's claims”
Establishes the court's holding that two of the eight grounds warrant reversal and remand
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Join FLexlaw to unlock all legal intelligenceBerry was convicted of two counts of robbery with a firearm and one count of resisting an officer without violence. He filed a postconviction motion a…
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Donnie Berry appeals the summary denial of an eight-ground motion for postcon-viction relief alleging ineffective assistance of counsel in the proceedings leading to his convictions for two counts of robbery with a firearm and one count of resisting an officer without violence. Based on our own careful review of Berry’s arguments, we hold that Berry has established reversible error with respect to two grounds.1 We reverse and remand for either an evi-dentiary hearing or attachment of portions of the record conclusively refuting Berry’s claims that counsel rendered ineffective assistance (1) in failing to move to suppress a victim’s identifications of Berry after an unduly suggestive identification procedure, as argued in ground II of the *224motion, and (2) in failing to raise a Brady2 issue due to the State’s failure to collect and preserve certain evidence, as argued in ground Y. In all other respects, we affirm.
When considering ground II on remand, the trial court should apply the non-exhaustive list of factors provided in Simmons v. State, 934 So.2d 1100, 1118 (Fla.2006) (quoting Grant v. State, 390 So.2d 341, 343 (Fla.1980)), and Edwards v. State, 538 So.2d 440, 442 (Fla.1989). The court’s order references these factors but fails to apply them to all the relevant allegations in Berry’s motion, which the court was required to accept as true absent either conclusive refutation by the record or an evidentiary hearing. See Freeman v. State, 761 So.2d 1055,1061 (Fla.2000).
As to ground V, Berry’s allegations indicate that the perpetrator’s shirt was in the State’s constructive custody, that it was potentially useful to his defense, and that its destruction or loss was caused by bad faith on the part of law enforcement. If these allegations are all true, which we must assume based on the case’s current posture, Berry is entitled to relief. See State v. Buitrago, 39 So.3d 540, 541 (Fla. 2d DCA 2010) (quoting State v. Thomas, 826 So.2d 1048, 1049 (Fla. 2d DCA 2002)).
AFFIRMED in part; REVERSED in part; and REMANDED.
THOMAS, RAY, and SWANSON, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Brady v. Maryland, 373 U.S. 83 (U.S. 1963)
- Freeman v. State, 761 So. 2d 1055 (Fla. 2000)
- Grant v. State, 390 So. 2d 341 (Fla. 1980)
- Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)
- Simmons v. State, 934 So. 2d 1100 (Fla. 2006)
- Edwards v. State, 538 So. 2d 440 (Fla. 1989)
- Remy Pierre v. State, 826 So. 2d 1048 (Fla. 5th DCA 2002)
- State v. Buitrago, 39 So. 3d 540 (Fla. 2d DCA 2010)