JARVIS ELMORE
v.
STATE OF FLORIDA
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A postconviction claim of ineffective assistance of counsel for failing to call a witness must be denied on summary judgment only if the claim is inadequately pleaded; if the defendant adequately alleges the witness's identity, substance of testimony, availability, and prejudice, the claim must proceed to an evidentiary hearing.
[1] A postconviction claim of ineffective assistance of counsel for failure to call a witness must proceed to an evidentiary hearing if the defendant adequately alleges the p…
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Join FLexlaw to unlock all legal intelligence“Because this claim was adequately pled, the trial court erred in its summary denial.”
Court's explanation for reversing the summary denial of Ground Two
Jarvis Elmore appealed the denial of his amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. In Ground Two, Elmor…
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JARVIS ELMORE,
Appellant,
v. Case No. 5D19-1509
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed February 14, 2020
3.850 Appeal from the Circuit Court for Orange County, John Kest, Judge.
James S. Purdy, Public Defender, and Craig R. Atack, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Jarvis Elmore appeals the denial of his amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm, without further discussion, the postconviction court’s denial of all grounds except Ground Two (formerly
2 Ground Sub-A) of Elmore’s amended rule 3.850 motion. As to that single claim, we reverse. In Ground Two, Elmore alleged that trial counsel was ineffective for failing to call a witness. In his amended motion, he adequately alleged: (1) the identity of the prospective witness; (2) the substance of the witness’s testimony; (3) the availability of the witness to testify at trial; and (4) an explanation concerning how this omission prejudiced the outcome of the trial. See Brumfield v. State, 259 So. 3d 986, 986 (Fla. 5th DCA 2018) (citing Nelson v. State, 875 So. 2d 579, 582-83 (Fla. 2004)). Because this claim was adequately pled, the trial court erred in its summary denial. Accordingly, we reverse the summary denial of Ground Two of Elmore’s amended rule 3.850 motion and remand for an evidentiary hearing or for the attachment of additional records that conclusively refute the claim.
AFFIRMED in part; REVERSED in part; and REMANDED.
EVANDER, C.J., ORFINGER and HARRIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Nelson v. State, 875 So. 2d 579 (Fla. 2004)
- Brumfield v. State, 259 So. 3d 986 (Fla. 5th DCA 2018)