IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JOHN D. SMITH, JR., NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-3127
STATE OF FLORIDA,
Appellee.
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Opinion filed July 1, 2015.
An appeal from the Circuit Court for Clay County.
Don H. Lester, Judge.
John D. Smith, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Appellant, John D. Smith, Jr., appeals the trial court’s denial of his motion for
post-conviction relief alleging ineffective assistance of trial counsel during a trial in
2009, where he was convicted of three counts of burglary. We reverse and remand
on Appellant’s fifth claim, because the post-conviction order and attached records
do not address or conclusively refute Appellant’s claim. We otherwise affirm the
post-conviction order denying Appellant’s remaining claims without comment.
Discussion
In his fifth claim for post-conviction relief, Appellant asserted that trial
counsel was ineffective for failing to object or obtain rulings on the admissibility of
certain Williams 1 rule evidence of prior bad acts, based on testimony offered by an
investigating officer and his probation officer. “When a motion for post-conviction
relief under [rule 3.850] is granted or denied without an evidentiary hearing, . . .
unless the record shows conclusively that the appellant is entitled to no relief, the
order shall be reversed and the cause remanded for an evidentiary hearing or other
appropriate relief.” Fla. R. App. P. 9.141(b)(2)(A) & (D).
In this case, we cannot determine from the record attachments whether the
record conclusively refutes Appellant’s contention that trial counsel was ineffective
for failing to object to testimony from two specific witnesses. First, an investigating
officer testified that she searched a shed at Appellant’s home for stolen property
from a prior burglary, thereby suggesting that Appellant had engaged in prior
burglaries. Though cited in Appellant’s motion below, the post-conviction order
does not address this testimony. Second, a probation officer testified that Appellant
was on probation (for other bad acts) at the time the burglaries were committed. In
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Williams v. State, 110 So. 2d 654 (Fla. 1959).
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both instances, we cannot determine from the record whether Appellant’s Williams
rule arguments lack merit. Nor can we determine from the record whether this
testimony became a feature of the trial.
Williams rule analysis is always two-fold. Collateral-crime evidence “is
admissible when relevant to prove a material fact in issue, but is inadmissible when
the evidence is relevant solely to prove bad character or propensity.” Wright v. State,
19 So. 3d 277, 291-92 (Fla. 2009) (citing § 90.404(2)(a), Fla. Stat. (2000)). See
also Jackson v. State, 140 So. 3d 1067, 1070-71 (Fla. 1st DCA 2014). Also, evidence
of other bad acts “cannot become a feature of the trial.” Wright, 19 So. 3d 277, 293
(citing Morrow v. State, 931 So. 2d 1021, 1022 (Fla. 3d DCA 2006), accord Bryan
v. State, 533 So. 2d 744, 746 (Fla. 1988)). “It is well-settled that the erroneous
admission of collateral crimes evidence is presumptively harmful and may be found
harmless only if the State establishes that there is no reasonable possibility that the
error contributed to the verdict.” Jackson, 140 So. 3d at 1073.
Because the record attachments fail to refute Appellant’s Williams rule-based
arguments, we must reverse and remand. Upon remand, the trial court may either
grant an evidentiary hearing, or enter summary denial a second time and attach
portions of the record that conclusively refute Appellant’s allegations. See Ortiz v.
State, 968 So. 2d 681, 686 (Fla. 1st DCA 2007).
Conclusion
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Accordingly, we REVERSE and REMAND the post-conviction order’s
summary denial of Appellant’s fifth, Williams rule-related, claim, but AFFIRM all
other claims.
LEWIS, MARSTILLER, and OSTERHAUS, JJ., CONCUR.
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