CALVIN LEE HOWARD
v.
STATE OF FLORIDA
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A claim of ineffective assistance of counsel for failing to investigate an unredacted law enforcement interview containing allegedly exculpatory portions is sufficient to survive summary denial and requires an evidentiary hearing, and a newly discovered evidence claim that fails to explain due diligence must be reversed to allow amendment rather than summarily denied.
[1] A claim of ineffective assistance of counsel alleging that trial counsel failed to investigate an unredacted law enforcement interview containing exculpatory evidence is…
[2] A newly discovered evidence claim under Rule 3.850 that fails to explain why the evidence could not have been discovered with the exercise of due diligence must be revers…
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Join FLexlaw to unlock all legal intelligence“We conclude that this claim is sufficient and not conclusively refuted by the record. We therefore reverse the summary denial of this claim for an evidentiary hearing or for the trial court to attach records conclusively refuting the claim.”
Court's reasoning regarding the ineffective assistance of counsel claim based on failure to investigate the unredacted interview
Calvin Lee Howard was convicted in a criminal case (LT Case No. 2016-CF-2111) and filed a Rule 3.850 motion for post-conviction relief. He alleged ine…
The full statement of facts, procedural history, and disposition for this case are member content.
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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
CALVIN LEE HOWARD, Appellant, v. Case No. 5D21-2118 LT Case No. 2016-CF-2111 STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed March 18, 2022 3.850 Appeal from the Circuit Court for Hernando County, Stephen E. Toner, Jr., Judge. Calvin Lee Howard, Graceville, pro se. No Appearance for Appellee.
PER CURIAM.
We affirm the summary denial of Appellant’s Florida Rule of Criminal Procedure 3.850 motion, except as to ground one, claim 3 and ground two, claim 1.
2 In ground one, claim 3, Appellant alleges that his counsel was ineffective for failing to investigate the unredacted version of his interview with law enforcement. As a result, Appellant alleges that the interview was played for the jury without the benefit of exculpatory portions which would have directly supported his defense in the case. We conclude that this claim is sufficient and not conclusively refuted by the record. We therefore reverse the summary denial of this claim for an evidentiary hearing or for the trial court to attach records conclusively refuting the claim. In ground two, claim 1, Appellant alleges the discovery of new evidence. Specifically, he alleges the victim’s mother will testify that the victim admitted Appellant was not the shooter. The trial court denied this claim reasoning that Appellant did not explain why he could not have discovered this evidence with the exercise of due diligence. We agree that the claim is deficient, but Appellant did not receive an opportunity to amend. We therefore reverse for the trial court to give Appellant an opportunity to amend, if he can do so in good faith. See Spera v. State, 971 So. 2d 754, 762 (Fla. 2007); Batista v. State, 288 So. 3d 85, 86 (Fla. 4th DCA 2020) (reversing for an opportunity to amend where appellant failed to “explain how ‘the facts on which the claim is predicated were unknown to the movant or
3 the movant’s attorney and could not have been ascertained by the exercise of due diligence’” (quoting Fla. R. Crim. P. 3.850(b)(1))). We otherwise affirm. AFFIRMED in part; REVERSED in part; and REMANDED. EISNAUGLE, NARDELLA and WOZNIAK, JJ., concur.
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Citator
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Adonis Batista v. State, 288 So. 3d 85 (Fla. 4th DCA 2020)