Robinson v. State
| Decision Date | 16 August 1995 |
| Docket Number | No. 95-01234,95-01234 |
| Citation | 659 So.2d 444 |
| Parties | 20 Fla. L. Weekly D1870 Edward G. ROBINSON a/k/a Elvis Myles, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Edward G. Robinson a/k/a Elvis Myles appeals the summary denial of his motion for postconviction relief. Of the seven grounds raised, five appear to have merit and necessitate the partial reversal of the order denying the motion.
A jury found Robinson guilty of two counts of robbery and one count of attempted robbery. The court imposed consecutive habitual offender sentences totalling seventy years of imprisonment.
It is asserted that trial counsel was ineffective, first, for failing to call the co-defendant, Marvin Brown, as a witness. Robinson indicates that had he been called, Brown would have testified that he was the perpetrator of the crimes, had pleaded guilty to the offenses, and that Robinson was not involved. Attached to the motion is an updated, notarized letter from Brown which supports Robinson's contentions. Further, the letter indicates that prior to Robinson's trial, Brown contacted Robinson's attorney and expressed his willingness to testify; however, counsel did not pursue the matter.
In the order denying the motion, the trial court conceded its inability to determine, in light of testimony given at trial by the three victims, whether the outcome would have been different if Brown had testified. This court has reviewed the unrefuted Statement of Facts contained in Robinson's initial brief on direct appeal wherein the victims are identified as three widows whose memories are "fuzzy" about the description of the perpetrator. Robinson was not apprehended at the scene of the crime, as was Brown, but was later located in the area by a police dog. When these factual allegations are considered in conjunction with Brown's proposed testimony, it appears that Robinson may have been prejudiced by the omission of the testimony.
Robinson has presented a facially sufficient motion alleging ineffective assistance of counsel for failure to investigate and to interview Brown as a potential witness by setting forth: (1) the identity of the prospective witness; (2) the substance of the witness' testimony; and (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial. See Highsmith v. State, 617 So.2d 825, 826 (Fla. 1st DCA 1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Therefore, the trial court must conduct an evidentiary hearing to examine Robinson's allegations on this point.
Next, Robinson claims his trial counsel was ineffective for failing to object to the "unconstitutionally impanelled," all-white jury pool and to the systematic exclusion of minorities in the jury pool. The trial court does not address this issue, but incorrectly states that it was raised on appeal. The issue was not raised on appeal because it was not preserved. 1
Appellate counsel cannot be deemed ineffective for failing to raise an issue on appeal which has not been preserved; however, trial counsel may be found to be ineffective for failing to object to the state's actions during voir dire. Vento v. State, 621 So.2d 493, 495-96 (Fla. 4th DCA 1993). While Robinson does not specify how he was prejudiced, he does describe the actions of a prospective white juror who allegedly tainted the jury with racially biased statements. Robinson's allegations are facially sufficient. This issue must be addressed by the trial court.
Thirdly, Robinson asserts his counsel was ineffective for failing to object to the illegal imposition of consecutive habitual offender sentences for a single criminal episode. See Hale v. State, 630 So.2d 521 (Fla.1993), cert. denied, --- U.S. ----, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). In the order denying the motion, the trial court incorrectly states that this issue was determined adversely to Robinson in a previous motion to correct illegal sentence. This issue has been properly raised and must be addressed. 2
Robinson next claims that counsel was ineffective for failing to independently determine if he qualified for treatment as a habitual offender. Robinson states that he informed counsel that the predicate convictions used to...
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Catis v. State, 98-2933.
...that the witnesses would have been available to testify, and did not specify the content of their testimony. See Robinson v. State, 659 So.2d 444 (Fla. 2d DCA 1995); Puig v. State, 636 So.2d 121 (Fla. 3d DCA 1994); Highsmith v. State, 617 So.2d 825 (Fla. 1st DCA Within that claim, appellant......
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Barthel v. State, Case No. 2D03-1625 (FL 5/19/2004), Case No. 2D03-1625.
...testimony; and (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial." Robinson v. State, 659 So. 2d 444, 445 (Fla. 2d DCA 1995). In its order summarily denying Barthel's claim of ineffective assistance, the trial court cited Robinson for the above s......
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Livingston v. State
...prejudiced the outcome of the trial.’ " Rangel-Pardo v. State , 879 So. 2d 19, 20 (Fla. 2d DCA 2004) (quoting Robinson v. State , 659 So. 2d 444, 445 (Fla. 2d DCA 1995) ); see also Highsmith v. State , 617 So. 2d 825, 826 (Fla. 1st DCA 1993). The same test applies when the potential witness......
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Odom v. State, 2D99-2225.
...the witness's testimony; and (3) an explanation as to how the omission of the testimony prejudiced the outcome. See Robinson v. State, 659 So.2d 444, 445 (Fla. 2d DCA 1995). While the First and Third Districts have held that the motion must also allege that the witnesses were available to t......