Paul Michael NELSON, Petitioner,
v.
STATE of Florida, Respondent.
Supreme Court of Florida.
*580 James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
Charles J. Crist, Jr., Attorney General, and Angela D. McCravy and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, FL, for Respondent.
WELLS, J.
We have for review Nelson v. State,
*581 FACTS
Petitioner Paul Michael Nelson (Nelson) was convicted of second-degree murder, which was affirmed by the Fifth District. Nelson v. State,
The trial court summarily denied Nelson's claim, reasoning that Nelson's motion was facially insufficient because Nelson did not allege that the witnesses were available to testify. State v. Nelson, No. CF96-705 (Fla. 7th Cir. Ct. order filed Dec. 5, 2000) (Order). The court further expressly concluded that even had Nelson asserted the availability of Ann Hopkins, her testimony would not have changed the outcome of the trial.
Nelson appealed the trial court's summary denial of this claim to the Fifth District Court of Appeal. The district court affirmed the trial court's order denying Nelson's ineffective assistance of counsel claim, holding that the trial court correctly found that Nelson's claim was facially insufficient because Nelson failed to allege that any of the witnesses were available for trial. Nelson v. State,
This conclusion logically follows from the fact that a postconviction ineffective assistance of counsel claim which is based upon counsel's failure to call witnesses must include "an explanation as to how the admission of this evidence prejudiced the outcome of the trial." Counsel's failure to call a witness who was unavailable to testify at trial could not logically prejudice the outcome of a defendant's trial.
Nelson,
ANALYSIS
The point of conflict before this Court is whether a defendant alleging that counsel was ineffective for failing to call, interview, or investigate witnesses at trial must specifically allege in his or her postconviction motion that the witnesses would have been available to testify at trial had counsel called them. This Court's review of this question of law is de novo. State v. Glatzmayer,
Florida Rule of Criminal Procedure 3.850(c), which sets forth the required contents of a rule 3.850 motion, provides:
(c) Contents of Motion. The motion shall be under oath and include:
(1) the judgment or sentence under attack and the court which rendered the same;
*582 (2) whether there was an appeal from the judgment or sentence and the disposition thereof;
(3) whether a previous postconviction motion has been filed, and if so, how many;
(4) if a previous motion or motions have been filed, the reason or reasons the claim or claims in the present motion were not raised in the former motion or motions;
(5) the nature of the relief sought; and
(6) a brief statement of the facts (and other conditions) relied on in support of the motion.
This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.
In addition to the Fifth District in the instant case, the First, Third, and Fourth District Courts of Appeal have repeatedly held that a defendant asserting ineffective assistance of counsel for the failure to call, interview, or present witnesses at trial must specifically allege that those witnesses would have been available to testify at trial. These courts base their decisions on the fact that a postconviction ineffective assistance of counsel claim which is based upon counsel's failure to call witnesses must include an explanation as to how the admission of the evidence prejudiced the outcome of trial. Counsel's failure to call a witness who was unavailable to testify at trial could not prejudice the outcome of a defendant's trial. See, e.g., Highsmith v. State,
The Second District has held to the contrary. In Odom v. State,
As noted by the parties in this case, in Gaskin v. State,
In Smith v. State,
First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading. Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel. In making this second determination, the performance of counsel must be judged in light of the totality of the circumstances. Third, the defendant has the burden to show that this deficiency, when considered under the circumstances of this case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has the opportunity to rebut those assertions by showing beyond a reasonable doubt that there was no prejudice in fact.
Id. at 325 (citation omitted).
Since Smith, which was decided prior to Strickland v. Washington,
That a witness would have been available to testify at trial is integral to the prejudice allegations. If a witness would not have been available to testify at trial,[3] then the defendant will not be able to establish deficient performance or prejudice from counsel's failure to call, interview, or investigate that witness.
We do not, however, want postconviction relief to be denied simply because of a pleading defect if that pleading defect could be remedied by a good faith amendment to the motion. Therefore, when a defendant fails to allege that a witness *584 would have been available, the defendant should be granted leave to amend the motion within a specified time period. If no amendment is filed within the time allowed, then the denial can be with prejudice.
Accordingly, we approve the reasoning of the opinion of the Fifth District in this case and hold that, as part of the requirement to show that counsel's ineffectiveness prejudiced the defendant's case, a facially sufficient postconviction motion alleging the ineffectiveness of counsel for failing to call certain witnesses must include an assertion that those witnesses would in fact have been available to testify at trial. However, we quash the decision of the district court with respect to its affirming the trial court's order concerning Jerry Hopkins and Russell Harris. The trial court should have permitted Nelson leave to amend for a specified period of time. We thus remand this case to the Fifth District for further proceedings in accord with this decision. We disapprove Odom to the extent that it is inconsistent with this decision.
It is so ordered.
QUINCE, CANTERO, and BELL, JJ., concur.
ANSTEAD, C.J., dissents with an opinion, in which PARIENTE, J., concurs.
LEWIS, J., dissents with an opinion, in which PARIENTE, J., concurs.
ANSTEAD, C.J., dissenting.
I respectfully dissent because I believe the majority has strayed far from the original purpose for the enactment of rule 3.850 as a means to facilitate the filing and processing of habeas corpus claims in postconviction proceedings. The holding of the majority is directly contrary to the letter and spirit of the limited pleading requirements set out in rule 3.850, which have always called for a simple, direct statement of a claim and the factual basis supporting the claim.
These limited pleading requirements recognized the reality that ninety-nine percent of rule 3.850 claims are filed pro se, and represented a policy choice that it was far less costly to the state to provide simple pleading requirements for habeas corpus claims than to provide costly lawyers. Today, we are, in effect, amending rule 3.850 in an ad hoc manner to add very specific and rigid pleading requirements which were never contemplated by the drafters of rule 3.850 or by this Court in adopting the rule.
In effect, we are now suggesting that habeas corpus claims filed under rule 3.850 are like civil causes of action that have "elements." And, presumably, we will identify those elements as we go along. Today's cause of action, for example, is an ineffectiveness of counsel claim predicated upon the failure of counsel to present evidence of innocence in the form of witness testimony. We have now held that availability of the witnesses is an essential element that must be pleaded. Of course, we are recognizing the effect of our ad hoc amendment by also allowing an amendment of the defendant's petition to cover our newly imposed requirement, since the defendant could not have known of this requirement by reading the rule. Presumably we will do the same as we require different "elements" in the future.
I agree with Justice Lewis's observation that the addition of this fourth element elevates form over substance because the witness's availability at trial is presumed when an allegation of counsel's failure to present a witness at trial is made. Therefore, the three requirements outlined by the Second District in Odom should be all *585 that are necessary for a facially sufficient 3.850 motion.
The legal reality is that ineffectiveness claims under Strickland v. Washington,
The majority's action is no doubt prompted by a genuine concern to alleviate the heavy postconviction caseloads of trial court judges. That concern, however, can just as easily be alleviated by the tried and true practice of trial judges rigorously adhering to the strict requirements of rule 3.850 as it now exists. The overwhelming majority of claims presented, for example, represent issues that should have been raised at trial or on appeal and are easily identified as such and summarily resolved. As to the issue now before us, a close examination of the facts alleged will usually be sufficient to identify whether the claim is fish or fowl. That close examination is a far better alternative than the ad hoc rule amendment we adopt today.
It is also far more practical than the approach we take today of sending cases back for amendments as pleading "defects" are identified by us or other courts under our new system of habeas "causes of action." Indeed, it would appear that we are engrafting the old and much criticized practice in civil litigation of filing motions to dismiss based on technical defects for the purpose of delay. There is enough delay in the system without adding this artificial layer to proceedings, which was never intended to have such formal and rigid pleading requirements. And, finally, it is far more consistent with the traditional purpose of The Great Writ of Habeas Corpus to catch and remedy serious injustices whenever they are called to our attention.
PARIENTE, J., concurs.
LEWIS, J., dissenting.
I respectfully dissent because although I agree that a witness certainly must have been available to testify at trial before the 3.850 motion may have been meritorious, I cannot agree that the motion is facially insufficient because it does not explicitly include the words "was available for trial." Subsumed within the allegation of the failure to present a witness at trial of which counsel was aware is the underlying premise that a witness was available for trial and would have testified if presented. Unquestionably, if a witness was not available, the petitioner will fail to demonstrate the requisite prejudice prong of Strickland. However, mandating that a petition include the four "magic words""was available for trial"most assuredly creates an additional pleading element, not required by the applicable rule.
In my view, the three requirements captured and outlined by the Second District in Odom are all that are minimally necessary for a facially valid motion: "[A] facially sufficient motion alleging ineffective assistance of counsel for failure to call witnesses must set forth (1) the identity of the prospective witness; (2) the substance of the witness's testimony; and (3) an explanation as to how the omission of the testimony prejudiced the outcome." Odom,
The majority's conclusion mandating that a motion include these four magic words"was available for trial"creates an unnecessary technical pleading requirement with which I cannot agree. Therefore, I dissent from the majority opinion, which now establishes the decisional authority that amended pleadings and additional delays will be the preferred method of seeking a just result. I therefore also concur with Chief Justice Anstead to the extent that the inclusion of a specific articulation of specific words concerning witness availability is not required for a pleading to be facially valid. I would accept the sound decision of the Second District in Odom.
PARIENTE, J., concurs.
NOTES
Notes
[1] Nelson asserted that counsel should have called the following witnesses: (1) Jerry Hopkins, Nelson's codefendant; (2) Ann Hopkins; (3) Russell Harris; and (4) a blood spatter expert.
[2] Nelson also cites Peede v. State,
[3] There are, of course, numerous reasons that a witness would not have been available, including a witness who had asserted his or her right to remain silent or a witness who could not be located or served with a subpoena.