Cody v. State

District Court of Appeal of Florida

Cody v. State

817 So. 2d 941, 2002 Fla. App. LEXIS 6866, 2002 WL 1022131

CourtDistrict Court of Appeal of Florida

DecidedMay 22, 2002

DocketNo. 1D01-4600

StatusPublished

This text of 817 So. 2d 941 (Cody v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cody v. State, 817 So. 2d 941, 2002 Fla. App. LEXIS 6866, 2002 WL 1022131 (Fla. Ct. App. 2002).

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Opinion

PER CURIAM.

Appellant seeks review of an order denying his motion seeking post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Because it appears that the trial court misunderstood the nature of appellant’s claim, which we conclude is facially sufficient, we reverse.

According to the allegations made in his motion, appellant was convicted, following a jury trial, of sexual battery and lewd and lascivious assault upon a person under 16 years of age. His defense was that he had not had sexual relations with the victim. At trial, the state had relied upon DNA evidence to prove that he had had sex with the victim.

Appellant claims that his trial counsel was ineffective because he failed to object to the testimony of the Florida Department of Law Enforcement serologist who was not qualified to report the population frequency statistics upon which she relied because she had no knowledge about the database upon which her calculations were based. The trial court denied the claim, apparently upon the mistaken belief that appellant was complaining about another aspect of the serologist’s testimony to which trial counsel had objected.

If appellant’s allegations are true, the serologist’s testimony would not have been admissible had a proper objection been [942]*942made. See Murray v. State, 692 So.2d 157, 163-64 (Fla.1997). Therefore, the portions of the record attached to the order denying relief do not conclusively refute appellant’s facially sufficient allegations that trial counsel’s performance was deficient, and that there was a reasonable probability that the outcome of the trial would have been different but for the deficient performance. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, we reverse the order denying relief on this claim. On remand, the trial court shall either attach to an order again summarily denying the claim portions of the record conclusively refuting it, or hold a hearing.

REVERSED and REMANDED, with directions.

BARFIELD, WEBSTER and BENTON, JJ., concur.

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PER CURIAM.

Appellant seeks review of an order denying his motion seeking post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Because it appears that the trial court misunderstood the nature of appellant’s claim, which we conclude is facially sufficient, we reverse.

According to the allegations made in his motion, appellant was convicted, following a jury trial, of sexual battery and lewd and lascivious assault upon a person under 16 years of age. His defense was that he had not had sexual relations with the victim. At trial, the state had relied upon DNA evidence to prove that he had had sex with the victim.

Appellant claims that his trial counsel was ineffective because he failed to object to the testimony of the Florida Department of Law Enforcement serologist who was not qualified to report the population frequency statistics upon which she relied because she had no knowledge about the database upon which her calculations were based. The trial court denied the claim, apparently upon the mistaken belief that appellant was complaining about another aspect of the serologist’s testimony to which trial counsel had objected.

If appellant’s allegations are true, the serologist’s testimony would not have been admissible had a proper objection been [942]*942made. See Murray v. State, 692 So.2d 157, 163-64 (Fla.1997). Therefore, the portions of the record attached to the order denying relief do not conclusively refute appellant’s facially sufficient allegations that trial counsel’s performance was deficient, and that there was a reasonable probability that the outcome of the trial would have been different but for the deficient performance. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, we reverse the order denying relief on this claim. On remand, the trial court shall either attach to an order again summarily denying the claim portions of the record conclusively refuting it, or hold a hearing.

REVERSED and REMANDED, with directions.

BARFIELD, WEBSTER and BENTON, JJ., concur.

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Bluebook (online)

817 So. 2d 941, 2002 Fla. App. LEXIS 6866, 2002 WL 1022131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cody-v-state-fladistctapp-2002.

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