IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
WARREN KILPATRICK, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-0723
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed August 12, 2014.
An appeal from the Circuit Court for Wakulla County.
Charles W. Dodson, Judge.
Warren Kilpatrick, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Kristen Lynn Bonjour, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
The appellant, Warren Kilpatrick, appeals the denial of his pro se Florida
Rule of Criminal Procedure 3.850 motion for post-conviction relief following an
evidentiary hearing. He argues that his trial counsel was ineffective for failing to
investigate and call a certain witness at trial. Finding the appellant’s arguments
without merit, we affirm.
At the post-conviction hearing, the appellant’s trial counsel testified that he
had interviewed the witness before trial and had determined that she intended to
offer false testimony in order to help the appellant. Trial counsel testified that he
was ethically prohibited from offering false testimony to the court. See Florida
Rule of Professional Conduct 4-3.3(a)(4). Trial counsel also testified that he was
advised by the witness’s own attorney that the witness would not be allowed to
take the stand and perjure herself.
The trial court denied the appellant’s post-conviction motion, finding that
trial counsel was not ineffective because the witness was not available to testify
and, even if the witness had taken the stand and exercised her Fifth Amendment
privilege, this would not have created a reasonable probability sufficient to
undermine confidence in the outcome of the case.
We review the trial court’s factual findings for competent, substantial
evidence and its legal conclusions de novo. See Stephens v. State, 748 So. 2d
1028, 1033 (Fla. 1999). This Court will not substitute its judgment for that of the
trial court on questions of fact, the credibility of witnesses, or the weight given to
the evidence. See Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997).
The framework for analyzing claims of ineffective assistance of counsel was
articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984):
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
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that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction .
. . resulted from a breakdown in the adversary process that renders the
result unreliable.
Here, the trial court properly denied the appellant’s post-conviction motion
as he failed to meet the Strickland prongs. Trial counsel’s decision not to call the
witness was proper. The witness was effectively unavailable for trial based on trial
counsel’s reasonable belief that she would present perjured testimony. See Nelson
v. State, 73 So. 3d 77, 88 (Fla. 2011) (stating that the unavailability of a witness
will preclude a defendant from establishing deficient performance or prejudice).
AFFIRMED.
WOLF and ROWE, JJ., and PARKER, GREGORY S., ASSOCIATE JUDGE,
CONCUR.
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