Highsmith v. State, 92-2564
| Decision Date | 03 May 1993 |
| Docket Number | No. 92-2564,92-2564 |
| Citation | 617 So.2d 825 |
| Parties | 18 Fla. L. Week. D1159 Leon HIGHSMITH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Leon Highsmith, pro se.
Robert A. Butterworth, Atty. Gen., and Wendy S. Morris, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant, Leon Highsmith, appeals the denial of his motion for post-conviction relief, in which he attacked the judgment and sentence imposed after a jury found him guilty of possession of a firearm by a convicted felon. Appellant was sentenced as an habitual felon to a 30-year term of imprisonment. We reverse and remand for further proceedings.
Appellant alleged his trial counsel provided ineffective assistance, by failing to interview and to call as witnesses at trial the two persons who were with him on the night of his arrest. Appellant further alleged that he gave his counsel the names of his two companions, Eric Walker, appellant's cousin, and Jody Porter, appellant's friend, and asked his counsel to interview these named individuals, and to ascertain whether they would be willing to testify on appellant's behalf at his trial. According to the allegations of the post-conviction motion, if these witnesses had been called, they would have testified that the firearm found under the seat of appellant's automobile did not belong to him, and he had no knowledge of its presence. In addition, appellant alleged that although his counsel assured him that he would interview Walker and Porter, counsel did not do so and neither witness was called to testify at trial.
The trial court found appellant's contentions without merit, on the ground that a decision concerning introduction of trial testimony is a strategic matter left to the judgment of trial counsel, and as such, it is not a proper ground for post-conviction relief. At our request, the state filed a brief responding to the allegations of the motion. See Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986). Counsel for the state concedes that appellant satisfied two of the criteria set forth in Majewski v. State, 487 So.2d 32 (Fla. 1st DCA 1986), for evaluation of an ineffective assistance of counsel claim predicated upon defense counsel's failure to interview allegedly exculpatory witnesses. However, the state asserts appellant failed to allege sufficiently specific facts in support of the other two criteria enumerated in Majewski. We disagree.
In cases involving claims of ineffective assistance of counsel based on counsel's alleged failure to investigate and to interview witnesses, a facially sufficient motion must include the following allegations: (1) the identity of the prospective witnesses; (2) the substance of the witnesses' testimony; and (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial. See Sorgman v. State, 549 So.2d 686 (Fla. 1st DCA 1989); Robinson v. State, 516 So.2d 20 (Fla. 1st DCA 1987); Swain v. State, 502 So.2d 494 (Fla. 1st DCA 1987); Majewski, 487 So.2d at 33.
Our research has disclosed no authority for the state's assertion that, not only must the defendant identify the witness by name and explain the nature of the testimony he or she would give if called as a witness, but also the defendant must provide specific details concerning the source of the witness's information and the reasons the witness would testify in the manner specified. None of the cases cited by the state appear to require such a fact-specific showing to establish the facial sufficiency of ineffective assistance of counsel allegations to the degree argued. For example, in Sorgman, the court explained:
A defendant alleging ineffective assistance of counsel must first allege a specific omission or overt act upon which his claim is based and such allegations must be in sufficient detail to apprise the court of the names of the witnesses, the substance of their testimony, and how the omission prejudiced the outcome of the trial. (citation omitted) Among the...
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