Opinion
No. 85-146.
May 16, 1985. Rehearing Denied June 20, 1985.
Appeal from the Circuit Court, Orange County, Rom W. Powell, J.
Lucious Lee Collier, in pro. per.
Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.
The appellant, Lucious Lee Collier, filed a 3.850 motion for post-conviction relief based on his assertion of ineffective trial counsel. In support thereof, he enumerated eighteen purported failures of his defense counsel at trial.
The trial court summarily denied evidentiary hearing on the motion in a written order. Paragraph number 5 of that order sets out the trial court's conclusions in regard to item number 17 of the defendant's complaints about his trial counsel — i.e., "Counsel committed the overt and grievous act of choosing the MOTHER of the State's Attorney who filed the INFORMATION against (Collier) to sit on his jury."
In its order, the trial court found:
5.
PERMITTING ASSISTANT PROSECUTOR'S MOTHER TO SIT ON JURY.
(Defendant's motion, paragraph 17)
The allegation that trial counsel was deficient in permitting the mother of the assistant state attorney who signed the information (not the assistant state attorney who tried the case), without more, fails to show a substantial and serious deficiency measurably below the standard of competent counsel, or how defendant was prejudiced thereby, and thus fails to state a claim for relief. Brown, Crump, and Gulley, supra. Or it was a matter of trial strategy. Ferby, supra.
The state's response to this point on appeal is that Collier "has presented no evidence to suggest that (the assistant state attorney's mother) would ipso facto be partial to the prosecution or unable to render a fair verdict. . . ." The point on this appeal is that Collier was not afforded the opportunity to present evidence at all. Moreover, it seems to us that if the truth of this allegation is established, the state will be faced with an unenviable burden to show that leaving the prosecutor's mother on the trial jury is an acceptable "matter of trial strategy." It is difficult to imagine such a bizarre scenario this side of a Mel Brooks movie. Suffice it to say, an evidentiary hearing is required on this issue.
We also note that the state's reliance on Muhammad v. State, 426 So.2d 533 (Fla. 1982), review denied, ___ U.S. ___, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983), and Ferby v. State, 404 So.2d 407 (Fla. 5th DCA 1981), in regard to allegations of failure to conduct adequate pretrial preparation is misplaced in light of the later case of Vaught v. State, 442 So.2d 217 (Fla. 1983). See Williams v. State, 447 So.2d 442 (Fla. 5th DCA 1984). This issue, also, requires an evidentiary hearing under the instant allegations.
REVERSED and REMANDED.
FRANK D. UPCHURCH, Jr., J., concurs.
COWART, J., dissents with opinion.
In Muhammad v. State, 426 So.2d 533 (Fla. 1982), review denied, ___ U.S. ___, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983), the Florida Supreme Court approved the denial without an evidentiary hearing of a 3.850 motion claiming ineffective assistance of counsel as to numerous specific acts or omissions asserted to constitute deficiencies of trial counsel because some of the acts or omissions were rebutted by the trial record itself, some showed a lack of prejudice, and the others were not sufficiently definite or were otherwise facially insufficient. Muhammad cited with approval McNeal v. State, 409 So.2d 528 (Fla. 5th DCA), rev. denied, 413 So.2d 876 (Fla. 1982), and Ferby v. State, 404 So.2d 407 (Fla. 5th DCA 1981). Vaught v. State, 442 So.2d 217 (Fla. 1983), did not overrule Muhammad but found that the adequately alleged acts and omissions of trial counsel were not shown by the record to be rebutted or harmless. In fact, Vaught specifically distinguished Muhammad:
Neither do we feel that the record negates a claim of prejudice. Our case of Muhammad v. State, 426 So.2d 533 (Fla. 1982), does not mandate a contrary result. In Muhammad we held that the factual allegations contained in the motion, even if proven, were insufficient to establish a claim of ineffective assistance of counsel. We cannot make that finding here. (emphasis supplied) 442 So.2d at 219.Vaught is not applicable to the instant case because here the trial court's ruling as to the claim of inadequate pretrial preparation was not based on rebuttal by the record but on the insufficiency of this allegation on its face. Unlike the 3.850 motion in Vaught, the motion in this case did not allege the specific evidentiary matters to which the alleged inadequate pretrial preparation related. Thus the trial court properly ruled that "A bare assertion in a post-conviction relief motion that counsel failed to depose witnesses does not constitute a ground for relief. Ferby, supra; Messer v. State [ 439 So.2d 875 (Fla. 1983)]." The trial court's citation to Messer was especially appropriate in view of the Florida Supreme Court's holding in that case that "the simple assertion that there were no depositions taken does not qualify as an identification of a specific omission" (emphasis in the original) and therefore "[t]his assertion does not even satisfy the first step of the four-step Knight test." 439 So.2d at 877. The mere allegation that defense counsel chose the mother of the assistant state attorney who signed the information to sit on the jury is facially insufficient in the absence of affirmative allegations of fact demonstrating actual prejudice (State v. Bucherie, 468 So.2d 229 (Fla. 1985) unless it is to be held as a matter of law that use as a juror of the mother of an assistant state attorney who signed informations is legally harmful per se.
Knight v. State, 394 So.2d 997 (Fla. 1981). Interestingly, Muhammad is actually Knight, he just changed his name.