Opinion
Case No. 5D21-1815
03-25-2022
John HASKELL, Appellant, v. STATE of Florida, Appellee.
Kepler B. Funk, Keith F. Szachacz, and Alan S. Diamond, of Funk, Szachacz & Diamond, LLC, Melbourne, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Daniel P. Caldwell, Assistant Attorney General, Daytona Beach, for Appellee.
Kepler B. Funk, Keith F. Szachacz, and Alan S. Diamond, of Funk, Szachacz & Diamond, LLC, Melbourne, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Daniel P. Caldwell, Assistant Attorney General, Daytona Beach, for Appellee.
WALLIS, J.
Appellant, John Haskell, appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, alleging three claims of ineffective assistance of counsel. We affirm the denial of claims two and three without further discussion and reverse and remand the denial of claim one for an evidentiary hearing.
Appellant was charged with attempted first-degree murder with a firearm, aggravated battery causing great bodily harm, and discharging a firearm from a vehicle. In claim one, Appellant argues that his trial counsel was ineffective for failing to consult and call a medical expert to rebut the State's evidence that Appellant shot the victim in the scenario described by the victim and witness. Throughout his trial, Appellant argued that the forensic evidence in the case was inconsistent with the State's theory that he was positioned to the right of the victim. The State never called an expert witness to establish either the positioning of Appellant or the trajectory of the bullets.
Although the record on appeal shows that trial counsel attempted to call a firearm expert at trial, it does not conclusively refute Appellant's claim that trial counsel was ineffective for failing to consult with a medical expert to testify about the wound and trajectory of the bullet. The remainder of the record is silent as to whether trial counsel located or consulted with such an expert and why counsel failed to call such an expert at trial. Therefore, we reverse and remand for an evidentiary hearing on claim one. See Jacobs v. State, 880 So. 2d 548, 555 (Fla. 2004) ("[A] claim of ineffectiveness in failing to present important exculpatory evidence cannot be resolved on the basis of the mere existence of conflicting evidence in the record. Rather, the record evidence must conclusively rebut the claim if the claim is to be resolved without a hearing.") (emphasis in original); Terrell v. State, 9 So. 3d 1284, 1289 (Fla. 4th DCA 2009) ("Ordinarily, where ... the defendant has identified specific exonerating testimony which could have been provided by an expert, an evidentiary hearing will be required to determine whether the decision not to present the expected testimony was tactical or an unprofessional failure on the part of appointed counsel.").
AFFIRM in Part, REVERSE in Part; REMAND with Instructions.
EDWARDS and WOZNIAK, JJ., concur.