Stites v. State

District Court of Appeal of Florida

Stites v. State

841 So. 2d 681, 2003 Fla. App. LEXIS 4912, 2003 WL 1855299

CourtDistrict Court of Appeal of Florida

DecidedApril 11, 2003

DocketNo. 5D02-1502

StatusPublished

Cited by2 cases

This text of 841 So. 2d 681 (Stites 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

Stites v. State, 841 So. 2d 681, 2003 Fla. App. LEXIS 4912, 2003 WL 1855299 (Fla. Ct. App. 2003).

Pincite

Opinion

ORFINGER, J.

Peter Stites’s conviction of three counts of lewd and lascivious assault on his adult son’s fifteen-year-old girlfriend was affirmed on appeal. See Stites v. State, 743 So.2d 531 (Fla. 5th DCA 1999). Stites then filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging that his trial counsel was ineffective due to: 1) counsel’s failure to investigate, interview and present an alibi witness; 2) counsel’s failure to investigate, interview and present witnesses whose testimony would have attacked the credibility of the State’s witnesses and demonstrated their bias; and 3) counsel’s failure to move for a mistrial or seek a curative instruction following the State’s improper cross-examination of Stites. The trial court summarily denied relief on claim 3, but conducted an evidentiary hearing on claims 1 and 2. Having carefully reviewed the record, we find competent, substantial evidence to support the trial court’s conclusion that counsel was not ineffective under the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as to claims 1 and 2.

As to claim 3, the record reflects that in cross-examining Stites, the prosecutor posed such questions as: “Isn’t it true that you have problems with your sexuality?”; “Isn’t the problem that you have sexual perversions?”; “Isn’t it true that you like a young girl like Kristen?”; and “You have a problem with pretty girls?” Trial counsel’s objections to these questions were all sustained, but he did not request a mistrial or ask the court to give a curative instruction. While conceding that the questions were improper under the facts of this case, the State argues that the issue is proce[682]*682durally barred, as it was raised on direct appeal. We disagree. On direct appeal, appellate counsel was limited to arguing that the unpreserved error was fundamental. Because we concluded that it was not, we affirmed Stites’s conviction.¹ As a result, we conclude that Stites’s postconviction argument is not a rehash of his argument on direct appeal reformulated as a claim of ineffective assistance of counsel.

Accordingly, we affirm the trial court’s decision regarding claims 1 and 2, and remand the matter for an evidentiary hearing on claim 3. In doing so, we express no opinion regarding the merit of Stites’s contention. We simply conclude that he is entitled to a hearing on that claim.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

THOMPSON, C.J. and SHARP, W., J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

ORFINGER, J.

Peter Stites’s conviction of three counts of lewd and lascivious assault on his adult son’s fifteen-year-old girlfriend was affirmed on appeal. See Stites v. State, 743 So.2d 531 (Fla. 5th DCA 1999). Stites then filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging that his trial counsel was ineffective due to: 1) counsel’s failure to investigate, interview and present an alibi witness; 2) counsel’s failure to investigate, interview and present witnesses whose testimony would have attacked the credibility of the State’s witnesses and demonstrated their bias; and 3) counsel’s failure to move for a mistrial or seek a curative instruction following the State’s improper cross-examination of Stites. The trial court summarily denied relief on claim 3, but conducted an evidentiary hearing on claims 1 and 2. Having carefully reviewed the record, we find competent, substantial evidence to support the trial court’s conclusion that counsel was not ineffective under the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as to claims 1 and 2.

As to claim 3, the record reflects that in cross-examining Stites, the prosecutor posed such questions as: “Isn’t it true that you have problems with your sexuality?”; “Isn’t the problem that you have sexual perversions?”; “Isn’t it true that you like a young girl like Kristen?”; and “You have a problem with pretty girls?” Trial counsel’s objections to these questions were all sustained, but he did not request a mistrial or ask the court to give a curative instruction. While conceding that the questions were improper under the facts of this case, the State argues that the issue is proce[682]*682durally barred, as it was raised on direct appeal. We disagree. On direct appeal, appellate counsel was limited to arguing that the unpreserved error was fundamental. Because we concluded that it was not, we affirmed Stites’s conviction.¹ As a result, we conclude that Stites’s postconviction argument is not a rehash of his argument on direct appeal reformulated as a claim of ineffective assistance of counsel.

Accordingly, we affirm the trial court’s decision regarding claims 1 and 2, and remand the matter for an evidentiary hearing on claim 3. In doing so, we express no opinion regarding the merit of Stites’s contention. We simply conclude that he is entitled to a hearing on that claim.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

THOMPSON, C.J. and SHARP, W., J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

841 So. 2d 681, 2003 Fla. App. LEXIS 4912, 2003 WL 1855299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stites-v-state-fladistctapp-2003.

Opinion

Related

Cite This Page — Counsel Stack