NATHAN CURRY v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: February 16, 2022
• Docket: 21-1888
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 16, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1888 Lower Tribunal No. F14-24825B ________________

Nathan Curry, Appellant,

vs.

The State of Florida, Appellee.

An appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Miguel M. de la O, Judge.

MHK Legal, PLLC., and Mark H. Klein (Coral Springs), for appellant.

Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.

Before SCALES, LINDSEY, and MILLER, JJ.

MILLER, J. Appellant, Nathan Curry, challenges the summary denial of his

amended motion for postconviction relief filed pursuant to Florida Rule of

Criminal Procedure 3.850, in which he raised nine claims. We affirm without

discussion the trial court’s denial of claims two, three, six, seven, eight, and

nine. We further conclude, however, that claims one, four, and five merit an

evidentiary hearing. These three claims allege, respectively: (1) defense

counsel provided ineffective assistance of counsel during the trial by failing

to call a witness who would have undermined the credibility of a critical

prosecutorial witness; (2) defense counsel provided ineffective assistance of

counsel in failing to order a competency evaluation; and (3) the State

withheld favorable, material video evidence in violation of Brady v. Maryland,

373 U.S. 83 (1963) and knowingly presented perjured testimony in violation

of Giglio v. United States, 405 U.S. 150 (1972). Each of these claims is

legally sufficient and not refuted by the record attachments. See Hatten v.

State, 698 So. 2d 899, 900 (Fla. 5th DCA 1997) (“[A] claim that trial counsel

failed to investigate or call exculpatory witnesses was facially sufficient and

must either be refuted by attachments or an evidentiary hearing held.”);

Jackson v. State, 711 So. 2d 1371, 1372 (Fla. 4th DCA 1998) (holding that

failure to call witnesses may be ineffective assistance of counsel if witnesses’

testimony may have cast doubt on defendant’s guilt); Williams v. State, 46

2 So. 3d 118, 118–19 (Fla. 1st DCA 2010) (holding claim that counsel was

ineffective for failing to adequately investigate defendant’s mental health was

facially sufficient where defendant alleged a history of mental health issues,

including severe depression and insomnia, for which he was taking multiple

medications that affected competency); Jackson v. State, 29 So. 3d 1161,

1162 (Fla. 1st DCA 2010) (holding claim that counsel was ineffective for

failing to investigate competency or request competency hearing was facially

sufficient where defendant alleged long history of mental illness, had not

taken medications, and was suffering from delusions and hearing voices at

time of plea). Accordingly, we affirm the denial of claims two, three, six,

seven, eight, and nine and reverse and remand claims one, four, and five for

an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.