Opinion
Case No. 5D18-3930
08-02-2019
Michael CHESTER, Appellant, v. STATE of Florida, Appellee.
Matthew R. McLain, of McLain Law, P.A., Longwood, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
Matthew R. McLain, of McLain Law, P.A., Longwood, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Appellant, Michael Chester, appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. His first trial for delivery of cocaine ended in a mistrial due to a hung jury. However, he was found guilty as charged in his second jury trial and was sentenced to ten years in prison with credit for time served. Appellant claims that his trial counsel was ineffective. For the reasons set forth below, we affirm in part and reverse in part.
Appellant asserts that trial counsel was ineffective for failing to secure, one way or another, the testimony of Ernest Tweedy, a confidential informant. Appellant argues that counsel was ineffective for misadvising Appellant that Tweedy's prior testimony from the mistrial would be inadmissible at the retrial, and for failing to introduce transcripts of that testimony. Appellant reasons that, because Tweedy had testified at the first trial which resulted in a hung jury and did not testify in the retrial which resulted in a conviction, his testimony would have resulted in a different outcome in that retrial.
During the first trial, Tweedy had testified that he did not recall Appellant ever selling drugs, that instead he knew him from making music. Tweedy had also testified that Appellant was not someone who he would have called to set up a drug buy. Appellant asserts that counsel assured him that Tweedy would appear for the retrial, but apparently failed to subpoena him. Appellant claims that counsel next told him that they could use Tweedy's prior testimony at the second trial. Appellant claims that counsel then advised him that the prior testimony could not be used because Tweedy was not "unavailable" because counsel had failed to subpoena him.
According to the State, at the first trial Tweedy denied being involved in the phone call to set up the drug transaction despite speaking in the same voice tone, inflection, and cadence as the individual in the video of that call. Likewise, Tweedy denied participating in the controlled buy and thus could not say whether Appellant was there or not. Finally, Tweedy said that he had no recollection of that period of his life because heavy drug use had damaged his memory.
The postconviction court's summary denial of this claim is not supported by its announced reasoning or by the documents attached to its order. The postconviction court found that defense trial counsel could not be found ineffective for failing to subpoena and present the testimony of a witness who offered no exculpatory or impeaching testimony. The postconviction court found that because the State had subpoenaed Tweedy, it somehow cured defense trial counsel's failure to do so. There was no indication by the court of how defense counsel could compel Tweedy's presence through the State's subpoena. Furthermore, defense counsel has an obligation to exercise due diligence to secure a witness's testimony, and that obligation was not addressed by the postconviction court. See Wilson v. State , 45 So. 3d 514, 517 (Fla. 4th DCA 2010).
The police officers who testified at the second trial admitted that the video, which did not have clear audio, did not show either the actual transaction or the drugs that were supposedly sold by Appellant to Tweedy. The postconviction court's order refers to the video and to still photographs supposedly depicting the drug transaction, but those items are not attached to the order. Given that Tweedy denied any involvement in the controlled buy and given the arguable lack of clear documentation of that transaction, his testimony seemingly would weaken the State's case, and thus defense counsel's failure to elicit it cannot be dismissed as harmless error. Furthermore, the postconviction court failed to address Appellant's claim that defense counsel was ineffective for failing to use the transcripts of Tweedy's testimony from the mistrial in the second trial. Such prior testimony could be used by a defendant whether the witness was available or not according to sections 90.803(22) and 90.804(2)(a), Florida Statutes (2018). Accordingly, we reverse for the postconviction court to either conduct an evidentiary hearing or to attach documents conclusively refuting all of Appellant's claims regarding defense counsel's failure to present Tweedy's testimony by calling him live or reading back the transcripts from the first trial.
Appellant's next claim is that trial counsel was ineffective by affirmatively providing misadvice, namely that the video of the controlled drug transaction would not come into evidence. Appellant alleged that based on his counsel's misadvice, he rejected a plea deal that would have resolved three cases and resulted in only four years in prison, rather than his posttrial sentence of ten years. However, his ineffective assistance claim was facially insufficient, as the postconviction court noted. Appellant should have been provided one opportunity to amend that claim in accordance with Florida Rule of Criminal Procedure 3.850(f)(2). We reverse and remand the summary denial of this claim so that Appellant may have the opportunity to file an amended, facially sufficient claim.
Appellant's third claim, that defense counsel conceded in closing argument to the jury that Appellant was guilty, is conclusively refuted by the documents attached to the postconviction court's order. Accordingly, we affirm the summary denial of Appellant's third claim.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.
EVANDER, C.J., EDWARDS, and SASSO, JJ., concur.