Davis v. State, AZ-352
Decision Date | 08 January 1985 |
Docket Number | No. AZ-352,AZ-352 |
Citation | 461 So.2d 291,10 Fla. L. Weekly 143 |
Parties | 10 Fla. L. Weekly 143 Glenn Edward DAVIS, Appellant, v. STATE of Florida, Appellee |
Court | Florida District Court of Appeals |
William R. Slaughter, II, Slaughter & Slaughter, Live Oak for appellant.
Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
Davis appeals from an order denying, without hearing, his Fla.R.Cr.P. 3.850 motion which was based upon ineffective assistance of his trial counsel by reason of counsel's conflict in representing both Davis and a codefendant. We reverse.
Davis failed to pull his vehicle into a state agricultural inspection station. He was stopped and asked to return to the station where he was unable to open the back of his truck. A deputy sheriff arrested Davis because he could smell marijuana coming from the truck. The back of the truck was forced open, and six bales of marijuana weighing 266 pounds were found. Small amounts of cocaine were found in the front of the truck. Davis and his passenger, Kenneth Mathews, were charged with trafficking in cannabis and possession of cocaine.
Davis and Mathews were represented by the same trial counsel 1 who filed a motion for severance. The motion was granted. At Davis' trial, the jury found him guilty of the marijuana trafficking charge but not guilty of the possession of cocaine charge. On his direct appeal, this Court affirmed the judgment in Davis v. State, 430 So.2d 974 (Fla. 1st DCA 1983), "without prejudice to appellant's right to file a motion for postconviction relief." Appellant had attempted to raise on the direct appeal the same point now raised in the instant 3.850 proceeding.
In denying the defendant's 3.850 motion, the trial court stated in his order:
This court has reviewed the entire file, to include transcripts of all pre-trial and trial proceedings in this cause, and after such review, this court finds nothing in the record to substantiate the defendant's claim that his attorney had a conflict of interest in representing both the defendant and a co-defendant other than any possible conflict that is always present in representing co-defendants and to which the defendant was obviously aware, made no objection thereto and thereby waived the same. The record is devoid of any indication that the attorney actively represented conflicting interests, and there is nothing in the record to demonstrate that the attorney's dual representation of the defendant and a co-defendant actually affected the adequacy of the attorney's representation of the defendant.
We do not agree with the trial court.
On February 8, 1982, the trial court heard a motion to suppress filed on behalf of Davis and a motion to dismiss filed on behalf of codefendant Mathews. After the court's denial of the motions at the conclusion of the hearing, defense counsel referred to the existence of a conflict in his continued representation of both defendants:
Judge, I don't know how your trial calendar is, but there will be a motion filed for severance in this case based on statements and also based on facts--(interrupted)
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* * * Judge, basically on this--obviously there is a conflict in this case and I need to file particular motions and file them properly before this court. I am certain the rule on these motions--the denial of the motion to suppress and the denial of the motion to dismiss changes the factual situation in this case. Whereby I believe that one of the defendants will become a witness for the other if the cases are tried separately, but I will have to file that motion (inaudible) and with getting another counsel because at this stage I would have a conflict.
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* * *
I believe one of the defendants will be testifying on behalf of the other to the fact that he had no knowledge to the case plus all the statements. I have to analyze it since there will be another lawyer in the case.
Defense counsel did not file a motion to withdraw from the representation of either defendant. However, on February 18, 1982, he did file on behalf of codefendant Mathews a motion for severance. The motion asserted, among other things: (1) that a severance was necessary "to promote a determination of the individual guilt or innocence of [Mathews]"; (2) that there was "no direct evidence that Mathews knew of the presence of contraband in the vehicle driven by [Davis]"; (3) that "the vehicle containing contraband was driven by and authority over it was at all times exercised by [Davis];" (4) that "there exists an inherent conflict in the defense of [Mathews] and [Davis] as to who had control of the contraband"; and (5) that "Davis has informed counsel that he, Davis, would testify at a separate trial that Mathews did not know of the existence of any contraband, nor did Mathews have the ability to control any contraband."
Counsel had also obtained from Davis an affidavit which was attached to Mathews' severance motion. Davis' affidavit stated:
If the trials of Mathews and myself were severed, I would testify at his trial that he did not know the pickup truck contained marijuana and he did not know that there was a vial of cocaine under my (driver's) seat. I would also testify that I had sole and complete control of the pickup and its contents and that Mathews had no ability or authority to use, dispose of or possess the pickup or any of its contents.
The affidavit also recited that he would not testify to the above facts if the defendants were jointly tried.
When the trial court, prior to commencement of the trial, considered the motion for severance, the state attorney indicated that if Davis were to acknowledge in open court that the signature on the affidavit was his, the state would not oppose a severance, but that the state fully intended to introduce the affidavit into evidence at Davis' trial. Thereupon, the court suggested that defense counsel present Davis in open court for the purpose of confirming the affidavit. Counsel did and the following colloquy occurred:
First of all, let me tell you that you certainly don't have to testify or confirm any of this. And anything you do say can and will be used against you in court in any trial of your case or the co-defendant or anyone else. So, with that in mind let me swear you in and let your attorney ask you what he wants to ask you.
GLENN EDWARD DAVIS, after being duly sworn, then testified as follows:
EXAMINATION BY [DEFENSE COUNSEL].
Q State your full name.
A Glenn Edward Davis.
Q You have read this affidavit filed in this case?
A Yes, sir.
Q Are the contents true and correct?
A Yes, sir.
Q Is that your signature there?
A Yes, sir.
Q. Mr. Davis, you understand that this affidavit is being introduced or filed in the case of your co-defendant?
A Yes, sir.
Q And you recognize as the Judge previously indicated that that statement can and will be in all probability used against you in your own trial?
A Yes, sir.
THE COURT: No problem then.
The court then granted Mathews' motion for severance, and the trial commenced as to the defendant Davis.
During the state's case-in-chief, the state introduced into evidence, over defense counsel's objection, Davis' affidavit. Counsel's objection was on the basis that "there has been no showing that the affidavit was done freely and voluntarily and the fact that it was done more or less under compulsion...
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