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POSTCONVICTION OR APPEAL…WHAT’S THE DIFFERENCE?

Often, those in need of postconviction or appeal proceedings (and their family members) are overwhelmed with the pressures of a recent conviction. The person convicted faces the stressful realities and fears of beginning a prison sentence, and his or her family is left with the emotional burden caused by missing a loved one, fear for the loved one, financial security, and, often, raising children. Nevertheless, it is usually left to family members to determine what steps in the legal process must next be taken. Absent a law degree, this can be very confusing.

If you find yourself in this or a similar situation, we hope that the following will help you to understand what steps to take next, and we hope this relieves some of the stress.

Appeals

Once a person is convicted, he or she has two options, and can take advantage of one or both: filing an appeal and filing for postconviction relief (in the legal world, “relief” is the term used for getting what you want: reversal of a conviction or sentence, or correction of other errors in a case. This is also sometimes referred to as a “remedy”).

An appeal is “[a] proceeding undertaken to have a decision reconsidered by a higher authority; esp., the submission of a lower court’s or agency’s decision to a higher court for review and possible reversal.”1 In other words, an appeal is filed in a court having higher authority (an appellate court)—which in Florida is the District Court of Appeal—and argues that the lower court (the “circuit court” in Florida) made an error that requires reversal.

There are many different errors that occur in lower courts, but not all of them entitle a person to reversal. Errors that require reversal are (appropriately) titled “reversible error,” or sometimes “fundamental error.” In order for an error to be a reversible error, it must have been “preserved” for review in the appellate court, which means that it was argued or objected to in the lower court by defense counsel. If an error is not preserved, the appellate court will not consider it unless it is a fundamental error.

A fundamental error is “the type of error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.”2 Of course, fundamental errors do not only occur at trial, but are equally applicable to plea proceedings.3 Basically, fundamental errors—which are very rare—can be argued in the appellate court even if they are not preserved because they are such serious errors that the conviction is not valid.

“Direct appeals” are filed immediately after the conviction (they must be initiated within thirty days of the conviction).4 Most decisions made by lower courts can be appealed, but the most common in criminal cases are direct appeals. Once a direct appeal is filed, the lower court loses its jurisdiction of the case, and as such cannot consider postconviction motions until the appeal is decided.

Appeals are not “granted” or “denied.” Instead, they are “affirmed” or “reversed.” This is because the question presented to the appellate court is whether the lower court committed error. If the appellate court decides that the lower court did not commit error, they will “affirm” the lower court’s decision—meaning they agree with and uphold the decision. If the decide that the lower court committed reversible error, they will “reverse” the lower court’s decision, which sometimes is the conviction, and other times is the sentence.

If an appeal is affirmed, the next step is to file for postconviction relief.

Postconviction

Postconviction is the process of applying to a court for relief after a conviction has been entered. Black’s defines “postconviction-relief proceeding” as “[a] state or federal procedure for a prisoner to request a court to vacate or correct a conviction or sentence.”5 In Florida, however, the rules of court applicable to postconviction relief also apply to convicted persons who are not prisoners.6

The two most common postconviction motions are filed under Florida Rules of Criminal Procedure 3.800 and 3.850. Motions filed under Rule 3.800 are usually for correction of illegal sentences, to correct sentencing errors, or to modify or reduce a sentence. Motions under Rule 3.850 usually seek to vacate a conviction. Most of the time, when the phrase “motion for postconviction relief” is used, the motion being referred to is a motion under Rule 3.850. The motions are commonly referred to by the rule under which they are filed, i.e., “I’m filing a 3.850,” or “when did you file your 3.800?”

There are many possible outcomes when these motions being granted. In some instances, the sentence is modified, in others the conviction is vacated. When a conviction is vacated, the defendant might face more time if there are more facts, new facts, or a new judge, so due consideration must be given as to whether it is appropriate to file for postconviction relief. Sometimes, it is best not to file.

Conclusion

Appeals are usually filed prior to filing for postconviction relief, but if the postconviction motion is denied, the denial of the postconviction can be appealed. So…

1. Direct appeal

2. Postconviction

3. Appeal of denial of postconviction

Sometimes it goes even further, like filing in the federal courts. By then, however, most people have enough experience to understand the process, and (hopefully) have hired an attorney to help walk them through the process.

Having a conviction and/or sentence reversed after the initial conviction is very difficult. Appeals and postconviction should never be relied upon in determining whether to enter a plea or go to trial. I’ll say it again: APPEALS AND POSTCONVICTION SHOULD NEVER BE RELIED UPON IN DETERMINING WHETHER TO ENTER A PLEA OR GO TO TRIAL. But if you or a loved one are convicted, appeals and postconviction may provide avenues for relief, and that is what our firm focus on! Give us a call if you have any questions!

Footnotes:

1 Black’s Law Dictionary 117 (10th ed. 2014).

2 McDonald v. State, 743 So.2d 501, 505 (Fla. 1999) (internal quotation omitted).

3 See, e.g., Miller v. State, 988 So. 2d 138 (Fla. 1st DCA 2008) (finding fundamental error in plea proceeding); Otero v. State, 696 So. 2d 442 (Fla. 4th DCA 1997) (same).

4 Fla. R. Crim. P. 9.140(a)(3).

5 Black’s 1354.

6 Fla. R. Crim. P. 3.850(a); Wood v. State, 750 So. 2d 592, 595 (Fla. 1999).

THE ESSENTIAL ROLE THAT KNOWLEDGE OF CRIMINAL TRIAL LAW PLAYS IN APPELLATE AND POSTCONVICTION PROCEEDINGS

In the postconviction field, it is essential to understand what a trial lawyer should and should not be doing. For example, should a lawyer take depositions in every case? The layman may so believe—we have heard this claim innumerable times. In reality, however, one of the most famous criminal defense attorneys ever, F. Lee Bailey, never took depositions. Ever. Likewise, as roughly 98% of cases result in pleas, there is seldom a basis for taking depositions that will contribute nothing to the plea process. In clear-cut cases, depositions—which are extremely expensive—produce little to no information in a case that will ultimately result in a plea agreement anyway.

Another example is objection. In many instances, an objection to an improper statement (or question, etc.) may serve no purpose other than highlighting the statement for the jury. Where defense counsel is certain that the objection will be overruled, calling attention to the statement serves only to tell the jury that the statement is unfavorable to the defendant, rather than forcing them to reach that conclusion on their own. Thus, in an ineffective claim, the court would ultimately deny the claim based on reasonable trial strategy.

We offer these as only two examples, but there are so many instances where trial procedure is invaluable to the postconviction litigant. Similarly, knowledge of the evidence code—especially as applied in criminal cases—is critical to successful criminal trial litigation, and as such, even more critical to postconviction.

With over twenty years of trial experience—indeed, over 130 trials—our office has the requisite wisdom, skill, and understanding to effectively litigate any postconviction claim. Below are some examples of our successful application of trial law:

State of Florida v. Dennis Moore

Fla. 4th Cir. No. 01-3016-CFA

Division D (Repeat Offender Court)

Judge: The Honorable Lance M. Day

The State of Florida brought Mr. Moore to trial on one count of Possession of a Firearm by a Convicted Felon. The allegations were that Mr. Moore shot another person in the stomach and immediately fled the scene. Two nearby officers, having heard the shot and observing Mr. Moore running away, chased after Mr. Moore. The pursuing officer testified at trial that once Mr. Moore turned a corner, the officer heard what sounded like of metal sliding across pavement. Mr. Moore was found hiding under a vehicle and the gun was found on the pavement about 20 feet away.

Mr. Moore was immediately taken back to the scene of the person who was shot. That person told the police that officers—and testified at the trial—that Mr. Moore was the person who shot him. A ballistics expert testified at the trial that the bullet retrieved from the scene came from the gun found just 20 feet from where Mr. Moore was apprehended.

The Law Office of W. Charles Fletcher defended Mr. Moore at the trial.

The jury returned a verdict of not guilty.

 

 

State of Florida v. Ellis Crum

Fla. 4th Cir. No. 03-0003086

Judge: The Honorable John Skinner

The State of Florida brought Mr. Crum to trial on one count of Strong Armed Robbery. The allegations at trial were that Mr. Crum and two of his associates pulled up behind an elderly woman who was unloading a grocery cart into the trunk of her car. Mr. Crum allegedly approached the woman and pushed her into the trunk of her car, then ran off with her purse. The police eventually caught up to Mr. Crum’s car, in which had the victim’s purse was found. Mr. Crum was arrested and taken back to the Publix parking lot, where he was positively identified as the robber by the victim and four bystanders who had witnessed the incident.

The Law Office of W. Charles Fletcher defended Mr. Crum at trial. He took the stand in his own defense and testified that he did, in fact, steal the victim’s purse, but that he never touched or shoved the victim. Although the victim had never been arrested, and the defendant had two prior felony convictions, Mr. Fletcher persuaded the jury to believe his client over the victim, and to convict Mr. Crum ONLY of a petit theft—which Mr. Crum admitted while testifying.

The jury found Mr. Crum not guilty on all other counts.

 

 

State of Florida v. Donald Thomas

Fla. 4th Cir. No. 02-27097-MM-A

Judge: The Honorable James Ruth

 

The State of Florid a brought Mr. Thomas to trial on one count of Battery. The allegations at trial were that Mr. Thomas punched and knocked out his boss after his boss fired him. Mr. Thomas’s boss had a black eye, a bloody/severed lip, and a gash in his tongue from the force of a punch to his chin. The State of Florida refused to make any offers to Mr. Thomas prior to the trial.

The Law Office of W. Charles Fletcher defended Mr. Thomas at trial. The defendant took the stand and testified that after his boss fired him, he packed up his belongings and proceeded to the door. However, when he refused to return the keys to a company car, his boss stood in the doorway and would not let him leave. Mr. Fletcher argued successfully that the defendant’s boss had falsely imprisoned Mr. Thomas, who then had a right to use force to get his boss out of the way. Mr. Thomas did just that.

The jury found Mr. Thomas not guilty.

 

 

State of Florida v. Edjarador Cromer

Fla. 4th Cir. No. 03-4064-CF-A

Judge: The Honorable Michael Weatherby

 

The State of Florida brought Mr. Cromer to trial on one count of Sale or Delivery of Crack Cocaine. The Law Office of W. Charles Fletcher defended Mr. Cromer at trial.

 

At the trial, a narcotics officer testified that while working in an undercover capacity, he approached a woman in the parking lot of a convenience store and asked her if she could help him get some crack cocaine. The woman agreed and the officer gave her a marked twenty dollar bill.

 

The officer, who was wired with a recording device, watched as the woman approached a man who was allegedly Mr. Cromer. The woman came back to the officer and gave the officer some crack cocaine, which she said she obtained from Mr. Cromer. Mr. Cromer was detained and se arched about five minutes later. The detaining officer testified at the trial that he found the marked money in Mr. Cramer’s pocket.

 

Although both the woman and the detective testified at the trial—and despite the fact that the officer played an audio recording of the entire transaction—the jury found Mr. Cromer not guilty.

 

 

State of Florida v. Daniel Taylor

Fla. 4th Cir. No. 01-316 9 7-MMA

Judge: The Honorable Roberto Arias

 

The State of Florida brought Mr. Taylor to trial on one count of Driving Under the Influence of Alcohol. The arresting officer testified at trial that, among other things, (1) Mr. Taylor had a moderate odor of alcohol on his breath; (2) Mr. Taylor was unsteady on his feet; (3) Mr. Taylor had a flushed face, watery blood shot eyes and slurred speech; and (4) Mr. Taylor swayed and lost his balance during the field sobriety exercises. Mr. Taylor also refused to submit to a breath test, prompting the State to argue that his refusal was evidence of his consciousness of guilt.

 

The jury, however, sided with the theory of defense presented by our office, and returned a verdict of not guilty.

 

 

State of Florida v. Cedric Cutter

Fla. 4th Cir. No. 01-31697-MMA

Judge: The Honorable David Gooding

 

Cedric Cutter was indicted for two counts of First Degree Murder and the State filed a Notice of Intent to Seek the Death Penalty. The Law Office of W. Charles Fletcher represented Mr. Cutter.

 

Almost two years into the case, we took the deposition of the State’s primary witness. This witness said that the gunman, whom he identified as Cedric Cutter, was at least six feet tall. Cedric Cutter, however, was barely 5’8”.

 

After Mr. Cutter patiently waited in jail for almost two years, we were able to convince the State that they had the wrong guy, and that we would prevail at trial with the defense of mistaken identification.

 

In response, the State dropped all charges, and an innocent man returned home to his family.

 

 

State of Florida v. Steven Heggs

Fla. 4th Cir. No. 99-6635-CFA

Judge: The Honorable Lance Day

 

The State of Florida brought Mr. Heggs to trial on one count of Possess ion of a Firearm by a

Convicted Felon. The allegations were that, during a search of the trunk of Mr. Heggs’ car, the arresting officer found a fully loaded 9 mm Uzi. The arresting officer testified at trial that Mr. Heggs confessed to owning the Uzi and that he had purchased it on the streets of Jacksonville.

 

The Law Office of W. Charles Fletcher defended Mr. Heggs.

Despite the evidence presented at trial—including Mr. Heggs’ confession—the jury returned a verdict of not guilty.

 

 

State of Florida v. Michael Holloway

Fla. 4th Cir. No. 01-8566-CF A

Judge: The Honorable Peter Dearing

 

The State of Florida brought Mr. Holloway to trial on one count of Burglary to a Dwelling. The allegations were that, in response to a silent burglar alarm, a police officer was dispatched to an address on the Westside. As the officer got out of his patrol vehicle he observed two black males walking out of the apartment to which he was dispatched. The officer stopped the men and asked the what they were doing.

 

Both ran.

 

The officer carefully noted that Mr. Holloway was carrying a small black camera bag. Both men were caught in the apartment complex within a few minutes. The Law Office of W. Charles Fletcher defended Mr. Holloway at trial.

Mr. Holloway took the stand in his own defense, testifying that he had taken his friend to one of his friend’s apartments and was waiting outside. When his friend did not return, Mr. Holloway walked up to the apartment and stepped in for just enough time to realize that the apartment’s door had been kicked off its hinges. He called for his friend and his friend walked out of a bedroom and tossed him the black camera bag. During closing arguments, Mr. Fletcher argued that the only crime that Mr. Holloway committed was a trespass.

 

The jury found Mr. Holloway not guilty of Burglary to a Dwelling, and guilty only of the lesser included offense of trespass, as asserted by the defense.

 

 

State of Florida v. Corey Bright

Fla. 4th Cir. No. 2012-CF-O11582

Judge: The Honorable Brad Stetson

 

Corey Bright was indicted for First Degree Murder after being identified by multiple witnesses as one of four gunmen involved in a shooting that left a Jacksonville man dead. The State sought the death penalty.

 

When Mr. Bright was arrested, he confessed to being involved in the shooting and to discharging a firearm. One of his co-defendants testified at trial that he witnessed Corey Bright raise his gun and fire a shot at the victim as the victim was running away.

The State called fourteen witnesses in all. The defense called none.

During the trial, Mr. Fletcher argued that the court give the jury the “Independent Act” jury instruction. During closing arguments to the jury, Mr. Fletcher argued that the death of the victim was a result of the “independent act” of one of the other gunmen because the State could not definitively establish that Mr. Bright’ s fired bullet caused the death of the victim. We also argued that the jury should disregard the state’s “principal theory” and only convict Mr. Bright of a lesser included offense.

 

The jury agreed, and found Mr. Bright not guilty of First Degree Murder, and instead, only guilty of Aggravated Assault.

 

 

State of Florida v. David Green

Fla. 4th Cir. No. 16-2004-CF-7726

Judge: The Honorable Peter Fryefield

 

A grand jury issued an indictment against David Green, charging him with one count of First Degree Murder and one count of Attempted First Degree Murder. At the trial, the state called witnesses to testify that David Green was involved in an ongoing dispute with the victim about money that was owed for a car. The State also called several witnesses to say that a young black male matching the description of David Green walked into the Family Dollar Store on Edgewood Avenue and stood behind the two victims for a couple of seconds, and that he then pulled out a handgun and shot both of them at point blank range.

 

Testimony revealed that just before one of the victim’s died, the victim whispered to one of the store clerks that “David did it.” The other victim, who had been shot in the face, lived and testified at the trial that he knew David Green and that it was David Green that came into the store and s hot him in the face and killed his friend.

 

The State also called one of Mr. Green’s cellmates to the stand to testify that Mr. Green had told him all about the case and confessed to doing the shooting.

 

Despite all this evidence, our office obtained a verdict of not guilty of both First Degree Murder and Attempted First Degree Murder.

 

 

State of Florida v. Glendon Beene

Fla. 4th Cir. No. 02-11672-C FA

Judge: The Honorable Michael Weatherby

 

The State of Florida brought Mr. Beene to trial for Attempted Second Degree Murder. The allegations against Mr. Beene were that during an argument with his girlfriend, he poured a bottle of rubbing alcohol on her and then set her on fire. The Law Office of W. Charles Fletcher defended Mr. Beene at the trial after more than a year of preparation.

 

At the trial, the victim testified that Mr. Beene had poured the rubbing alcohol on her back, and when she turned around to confront him, he lit her on fire. Paramedics testified that when they arrived at the scene, the victim’s skin was falling off the upper half of her body. The defendant took the stand in his own defense and testified that after an argument with the victim, she went into the bedroom and attempted to commit suicide by lighting herself on fire.

 

The jury agreed and found Mr. Beene not guilty of all charges.

Conclusion

From this knowledge has developed a perspective in postconviction proceedings that could not exist absent years of trial practice. Together with unmatched writing abilities, our office offers a combination of experience, skill, and wisdom that breathes the calm confidence to our postconviction clients that comes from knowing that he or she is in good hands.

 

LEGAL WRITING AND POSTCONVICTION

The vast majority of postconviction pleadings are completed by pro se--that is, self-represented--litigants. Below is a discussion that we hope will assist the pro se litigant. Feel free to print this and send a copy to anyone whom you believe it may assist. If you are able to make it through the first paragraph, you are truly an expert! If not, you sit with the many judges who are forced to read difficult pleadings:

 

I. Unnecessary Complications

 

It is obdurately vital when composing legal pleadings that, inter alia, profusion of law-Latin aphorisms remain omitted so as to alleviate the occasion of miscommunicating the deliberate concepts as well as to ensure the affording of a deeper and more comprehensive discernment on part of the audience, whether be they lay or, in the alternative, expert, thereby withdrawing from a possibility of litigants, judges, justices, et al., feeling non compos mentis ensuing not from juristic standing vel non, but rather from one legist’s misapprehension of the lex fori and the pleading requirements therefor, notwithstanding that legist’s ostensibly esurient attempt to formally plead within the devices set forth pursuant to one's governing rules of court.

But, unfortunately, it happens all the time.

The first paragraph of this article illustrates exactly how NOT to write.

 

While it is, indeed, common for attorneys to overuse legal jargon and Latin in written pleadings, it is much more common for nonlawyer inmate law clerks to try to sound “lawyerish’’ by writing a document that cannot reasonably be understood by anyone--jurist or otherwise.

Rather than trying to sound lawyerish, try CRAC!

II. Writing Methods: IRAC and CRAC

 

There are two primary methods of legal writing: IRAC and CRAC. These prominent methods can be identified in most legal pleadings and often in judicial opinion. Below is an examination and explanation of each.

IRAC is an acronym for Issue Rule Analysis Conclusion. In IRAC, the first part of the document--Issue­--explains the issue presented. For example, if, in a 3.850, you were arguing ineffective assistance of counsel (“IAC”) for failing to call a witness, your first paragraph might state:

In the present case, counsel’s primary theory of defense was mistaken identity Defendant’s wife told trial counsel that Defendant was home with her at the time the offense was committed. She also testified to the same during sentencing. Nevertheless, counsel failed to call her during sentencing.

Next in IRAC is Rule. This is the same in CRAC. "Rule" is where you explain the rule of law that applies to the facts of your case. In the above example, you would follow with a summary of the general Strickland Standard for IAC claims, followed by specific rules for IAC claims where the underlying claim is failure to call a witness:

In order to prove that trial counsel was ineffective, a defendant must show that (1) counsel’s performance fell below the reasonable standard guaranteed by the Sixth Amendment, and (2) that, but for counsel’s errors, there is a reasonable probability that the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984).

When a defendant alleges ineffective assistance of counsel for failure to call a witness, the defendant must also (l) allege that counsel was aware of the witness; (2) allege that the witness was available to testify at trial; (3) describe what the substance of the witness’s testimony would have been; and (4) explain how such testimony would have affected the outcome of the trial. Nelson v. State, 875 So.2d 579, 582-83 (Fla. 2004); Jacobs v. State, 880 So.2d 548 (Fla. 2004).

To clarify, the Rule section does not require court rules, but rather the rules of law that are applicable to your case. These may be cases, statutes, court rules, administrative codes or procedures, or common practices and usages.

The Analysis section is where you apply the rule of law to the facts of your case. For example, in the rule section above, it was demonstrated that you must meet four prongs in order to demonstrate IAC for failing to call a witness. The Analysis section is where you do so:

Trial counsel’s primary theory of defense was mistaken identity. Counsel effectively showed the jury that at the time of the crime--which occurred late at night--the parking lot was dark and it was drizzling. The witness claimed to have identified Defendant while looking through a window in the security booth that, as counsel elicited during cross- examination, was fogging up.

Counsel failed, however, to give the jury any alternative to believing that Defendant committed the crime. Merely demonstrating that it was difficult for the State’s chief witness to see would not have cast the reasonable doubt necessary for Defendant to prevail. Instead, the jury needed to hear an alternative theory than that of the State, and counsel had a witness and evidence to do just that.

 

During Defendant’s first meeting with counsel after signing a retainer, Defendant’s wife told counsel that Defendant was home with her at the time of the burglary. She informed counsel that at the time the burglary occurred, she and Defendant had gone to dinner and a movie. She told counsel that she wanted to testify to clear her husband and provided counsel with ticket-stubs and a credit card receipt from dinner.

 

But counsel did not call her as a witness. 

 

Instead, counsel told Defendant that calling her was unnecessary, and that the State’s case was “so weak that it would likely end with a motion for judgment of acquittal.” That motion was denied, and Defendant is now serving an eight-year prison sentence.

With IRAC, once you are finished applying the rules and law to your facts, apply cases to your facts. How to do this will be explained in the CRAC section below. IRAC really should be IRACC-the first “C” being for cases.

The Conclusion section of IRAC should sum up the argument and assert the requested relief:

Counsel’s failure to call Defendant’s wife as a witness deprived the jury from testimony and evidence of Defendant’s alibi, which would have supported his "mistaken identity" theory of defense. Had counsel called Defendant’s wife as a witness, there is a reasonable probability that the jury would have reached a different verdict. Accordingly, counsel was ineffective in violation of Defendant’s Sixth Amendment right to effective assistance of counsel and clearly established federal law as determined by the Supreme Court in Strickland. Defendant’s judgment must be reversed, and he permitted to proceed to a new trial with competent counsel.

Now that IRAC has been explained, NEVER USE IT!!! Instead, use CRAC! In the CRAC method, the conclusion comes first:

In the present case, counsel’s primary theory of defense was mistaken identity. Defendant’s wife told trial counsel that Defendant was home with her at the time the offense was committed. She also testified to the same during the sentencing hearing. Nevertheless, counsel failed to call her during trial. Had counsel called Defendant’s wife at trial, the jury would have received both testimony and physical evidence of Defendant’s alibi, and there is a reasonable probability that the jury would have reached a different verdict. Accordingly, counsel was ineffective in violation of Defendant’s Sixth Amendment right to effective assistance of counsel and clearly established federal law as determined by the Supreme Court in Strickland. Defendant’s judgment must be reversed, and he must be permitted a new trial with competent counsel.

CRAC puts the conclusion first based on the reality that judges may not always read your whole argument. As such, you don’t want to wait until the end of the argument to form a conclusion or assert the requested relief; the judge may not make it that far. By putting the conclusion first, the judge will immediately know what the issue is, what affect the issue had on the proceedings, and the relief requested.

The next section in CRAC is Rule. This is the same as IRAC.

The Analysis section is the same as IRAC, too, but does not include cases. This does not mean that you can’t cite case law in the Analysis section, it just means that the cases should only be cited to support your argument, not broken down and explained in depth.

 

The final section of CRAC--Cases--is where you find cases that are identical (sometimes referred to as “Whitehorse” cases) or very similar (referred to as “on all fours”) with your case. These cases should be summarized and then compared to your case, as follows:

In Jacobs, 880 So.2d at 551, the Florida Supreme Court considered whether a Rule 3.850 motion alleging ineffective assistance of counsel was facially sufficient. In the motion, Jacobs alleged that counsel was ineffective for failing to call two alibi witnesses who would have testified that Jacobs was with them at the time of the burglary. Jacobs alleged that the witnesses were known to counsel-counsel file a notice of alibi stating that “[a]t the exact date and time of the alleged offense, the defendant was at: 3638 Percipal Avenue, Coconut Grove, Florida”--and that the witnesses “were available ... and would have testified that at the time of the alleged crimes Jacobs was with them and not at the scene of the crimes.” Id. at 549.

The trial court denied Jacobs’ motion, relying on “overwhelming evidence against the defendant.” Id. at 551. On appeal, the Fifth District affirmed, stating

[a]lthough the defendant claims these witnesses would have testified that he was in their home at the time of the crime, other eyewitness testimony placed the defendant at the scene of the crime and there was overwhelming evidence of the defendant's burglary of the unoccupied dwelling.

Id. (citing Jacobs v. State, 800 So.2d 322,323 (Fla. 3d DCA 2001)). The Supreme Court disagreed, holding that

the mere existence of evidence of guilt is insufficient to conclusively rebut a claim of ineffectiveness in failing to present evidence of innocence in the form of known and available alibi witnesses. Rather, such a claim involves an assertion that a defendant is entitled to have counsel act reasonably and effectively, in determining whether to present exculpatory evidence in support of the defense. And, where it is facially asserted that such evidence exists, but was not presented, a State response must be ordered and considered before determining if a hearing is required unless the record demonstrates a reasonable explanation or otherwise conclusively refutes the claim. Id. at 555.

 

In the present case, Defendant is entitled to the same relief as Jacobs. Counsel should have called Defendant’s wife as an alibi witness. Although there was existence of evidence of guilt, the testimony of Defendant’s wife was heavier than the inculpatory evidence, especially when coupled with the physical exculpatory evidence that the witness would have provided. The Supreme Court has held this to be a facially sufficient claim, and Defendant should be afforded an evidentiary hearing.

Because CRAC offers the conclusion to the reader at the beginning of the document, it is far more likely that the reader will understand your point without putting the document down than had you used IRAC.

III. The Court: Your Reader

Keep in mind that there will be a real person reading the pleading. In many cases, it will be a law clerk or judicial assistant, not just a judge. For this reason, even if you are regularly using CRAC, another rule is KISS, don't KILL (Keep It Short and Simple, don't Keep It Long and Lengthy). Nobody wants to read an unnecessarily long, drawn-out document. Assert your facts and claims precisely and accurately. Support the claims with authority where necessary, and not EVERY authority--just a couple of supporting citations (assuming a discussion is not necessary). Rarely should one exceed the page limits provided by the rules of court.

Good luck, we hope this helps!

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