Ferrer v. State

District Court of Appeal of Florida

Ferrer v. State

2 So. 3d 1111, 2009 Fla. App. LEXIS 1277, 2009 WL 383615

CourtDistrict Court of Appeal of Florida

DecidedFebruary 18, 2009

Docket4D08-3027

StatusPublished

Cited by6 cases

This text of 2 So. 3d 1111 (Ferrer 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

Ferrer v. State, 2 So. 3d 1111, 2009 Fla. App. LEXIS 1277, 2009 WL 383615 (Fla. Ct. App. 2009).

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Opinion

WARNER, J.

We affirm the trial court’s order summarily denying appellant’s motion for postconviction relief on all grounds except one. As to that claim, he maintains that he was deprived of his right to testify because of his attorney’s misadvice that the state could impeach him with the facts and nature of his prior convictions. See Hope v. State, 960 So.2d 912 (Fla. 4th DCA 2007); Tyler v. State, 793 So.2d 137, 141 (Fla. 2d DCA 2001). We conclude that appellant’s motion is legally sufficient to state a claim on this ground on both the deficient performance and prejudice prongs of the Strickland test. See Oisorio v. State, 676 So.2d 1363 (Fla.1996). We reverse for the trial court to conduct an evidentiary hearing on the issue or attach portions of the record conclusively refuting this claim.

We affirm as to the other grounds raised. We specifically affirm the claim that counsel was deficient in failing to move to suppress appellant’s recorded conversation at the police station with his codefendant. The conversations were not the result of law enforcement deliberately fostering an expectation of privacy. See Larzelere v. State, 676 So.2d 394, 405 (Fla.1996); Allen v. State, 636 So.2d 494, 496-97 (Fla.1994); Williams v. State, 982 So.2d 1190, 1194 (Fla. 4th DCA 2008). Then-admission also did not violate appellant’s right of confrontation, as they were not testimonial statements under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

GROSS, C.J., and DAMOORGIAN, J., concur.

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WARNER, J.

We affirm the trial court’s order summarily denying appellant’s motion for postconviction relief on all grounds except one. As to that claim, he maintains that he was deprived of his right to testify because of his attorney’s misadvice that the state could impeach him with the facts and nature of his prior convictions. See Hope v. State, 960 So.2d 912 (Fla. 4th DCA 2007); Tyler v. State, 793 So.2d 137, 141 (Fla. 2d DCA 2001). We conclude that appellant’s motion is legally sufficient to state a claim on this ground on both the deficient performance and prejudice prongs of the Strickland test. See Oisorio v. State, 676 So.2d 1363 (Fla.1996). We reverse for the trial court to conduct an evidentiary hearing on the issue or attach portions of the record conclusively refuting this claim.

We affirm as to the other grounds raised. We specifically affirm the claim that counsel was deficient in failing to move to suppress appellant’s recorded conversation at the police station with his codefendant. The conversations were not the result of law enforcement deliberately fostering an expectation of privacy. See Larzelere v. State, 676 So.2d 394, 405 (Fla.1996); Allen v. State, 636 So.2d 494, 496-97 (Fla.1994); Williams v. State, 982 So.2d 1190, 1194 (Fla. 4th DCA 2008). Then-admission also did not violate appellant’s right of confrontation, as they were not testimonial statements under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

GROSS, C.J., and DAMOORGIAN, J., concur.

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2 So. 3d 1111, 2009 Fla. App. LEXIS 1277, 2009 WL 383615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferrer-v-state-fladistctapp-2009.

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