Davis v. State, 92-2390

• Decision Date: 03 August 1993
• Docket Number: No. 92-2390,92-2390
• Parties: 18 Fla. L. Weekly D1713 Kern Ron DAVIS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 282

624 So.2d 282

18 Fla. L. Weekly D1713

Kern Ron DAVIS, Appellant, v. The STATE of Florida, Appellee.

No. 92-2390.

District Court of Appeal of Florida,

Third District.

Aug. 3, 1993.

Rehearing Denied Oct. 19, 1993.

Holland and Knight and Manuel L. Dobrinsky, Miami, for appellant.

Robert A. Butterworth, Atty. Gen., and Avi J. Litwin, Asst. Atty. Gen., for appellee.

Before HUBBART, FERGUSON and GODERICH, JJ.

FERGUSON, Judge.

The dispositive issue presented in this appeal from an order denying post-conviction relief after an evidentiary hearing is whether pre-hearing discovery is available to a petitioner on a motion which alleges ineffective assistance of counsel.

Davis was convicted of armed robbery of a drive-in convenience store. The single question at trial was whether the theft was committed with the use of any firearm or weapon. The defendant admitted that he simply drove away with a small amount of groceries without paying. The State, through a single witness, convinced the jury that the defendant used a firearm.

At trial, the jury heard a taped confession of the defendant where he also admitted to cocaine addiction. When defense counsel stood to object, he was reminded of his prior stipulation that the tape would be admitted as evidence. Afterwards there was no further objection. In closing argument, the prosecutor urged the jury to consider the defendant's drug addiction in passing on his credibility. Davis also contends that the prosecutor's bolstering of its single witness as a credible former police officer--although he was also a felon--should have been objected to by his attorney and that the combination of omissions made the difference in what was a very close case on the evidence. In affirming the robbery conviction on direct appeal, we observed that it was a close case:

We agree that (a) the combined effect of the first two of the complained-of arguments were sufficiently improper, and (b) the evidence at trial was otherwise sharply in conflict as to whether a robbery or petit theft was committed by the defendant, that reversible error would have been presented if ... (a) the defendant had properly objected to these two arguments or moved for a mistrial based thereon, and (b) the trial court had overruled the objection or denied the motion for mistrial.

Davis v. State, 590 So.2d 496, 497 (Fla. 3d DCA1991).

It is the defendant's burden, on a claim of ineffective counsel, to "overcome the presumption that, under the circumstances, the challenged action of his attorney 'might be considered sound trial strategy' ". Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984); State v. Stirrup, 469 So.2d 845 (Fla. 3d DCA), rev. denied, 480 So.2d 1296 (Fla.1985); Anderson v. State, 467 So.2d 781 (Fla. 3d DCA), rev. denied, 475 So.2d 693 (Fla.1985). In attempting to meet that burden, Davis issued a subpoena to depose his former attorney. The court granted the State's motion to quash the subpoena on the ground that there was no right to pre-hearing discovery. Davis contends that with discovery he would have learned whether the attorney was prepared for trial and what the strategy was, if any, in stipulating to the admission of all of the taped confession and in failing to move for a mistrial after the State's egregious closing argument.

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