Supreme Court of Florida
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No. SC14-1925
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STATE OF FLORIDA,
Petitioner,
vs.
ERIC LUCAS,
Respondent.
[January 28, 2016]
LABARGA, C.J.
The State seeks review of the decision of the Fourth District Court of Appeal
in Lucas v. State, 147 So. 3d 611 (Fla. 4th DCA 2014), on the ground that it
expressly and directly conflicts with a decision of this Court, Nelson v. State, 875
So. 2d 579 (Fla. 2004), on a question of law. We have jurisdiction. See art. V,
§ 3(b)(3), Fla. Const. The question before the Court is whether a postconviction
movant filing a motion under Florida Rule of Criminal Procedure 3.850 alleging
that trial counsel was ineffective in failing to consult and present an expert in a
particular field must always identify that witness by name and allege that the
witness would have been available to testify at trial—and whether failure to do so
will render the claim legally insufficient. For the reasons discussed below, we
answer this question in the negative and approve the district court’s decision in
Lucas.
I. FACTUAL AND PROCEDURAL HISTORY
The background facts of this case and the original convictions are set forth in
Lucas v. State, 67 So. 3d 332 (Fla. 4th DCA 2011). Lucas was convicted of
burglary of a dwelling with a battery and aggravated battery. Id. at 334. The
district court explained:
At trial, a witness, Lewisha Freeman, testified to hearing a
woman banging on doors and screaming, “[S]omebody help me, he is
going to kill me.” Freeman stepped outside her apartment and saw
appellant yelling at a woman and grabbing the woman by her throat.
Appellant released the woman, later identified as appellant’s girlfriend
Lauren Glushko, who then went into Freeman’s apartment.
Appellant yelled through the door of Freeman’s apartment and
threatened, “I will fight you like a man.” Freeman called the police,
but before they could arrive, appellant broke into Freeman’s
apartment by “busting” through the door. Appellant then hit Freeman
on her face and body. Appellant ceased hitting Freeman only when
the apartment manager entered the apartment, and appellant then fled.
Id. The opinion further stated that victim Freeman “sustained two fractures around
her eye and was hospitalized for three days.” Id. Lucas was convicted and
sentenced to life in prison as a prison releasee reoffender. Id. at 335. On appeal,
the Fourth District affirmed the convictions and sentence. Id. at 337.
On January 22, 2013, Lucas filed a postconviction motion under Florida
Rule of Criminal Procedure 3.850 raising four grounds for relief. Ground One, the
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only claim at issue here, alleged that trial counsel was ineffective in failing to
consult and hire an ophthalmologist expert to rebut the State’s claim that the victim
suffered permanent eye damage as an element of aggravated battery.1 The motion
alleged that the victim testified at trial that she had to wear an eye patch and could
not see with both eyes open at one time—and that she needed surgery but could not
afford it. The motion further alleged that the State’s witness, Dr. John Clark, an
oral maxillofacial surgeon, testified that an ophthalmologist would be better suited
to examine Freeman, but that eye sockets fracture easily and Freeman did not need
eye surgery. The motion alleged that an ophthalmologist had examined Freeman
and stated in a report, which was reviewed by Dr. Clark, that Freeman would be
“okay” but should see a specialist if she had further visual difficulty, and that she
could be referred to a specialist who could treat her with medication. Lucas
contended that the prosecutor used this testimony to argue for permanent injury to
support the crime of aggravated battery.
Lucas also argued in his motion that trial counsel had a duty to present an
expert in the field of ophthalmology to rebut the presumption of permanent injury
as an element of aggravated battery—and that if trial counsel had done so, the jury
1. Section 784.045, Florida Statutes (2015), provides that a person is guilty
of “aggravated battery” if, in committing a battery, the person “[i]ntentionally or
knowingly causes great bodily harm, permanent disability, or permanent
disfigurement.” § 784.045(1)(a)1., Fla. Stat. (2015).
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would have heard testimony that the injury was not permanent and could be
corrected by surgery or medication. The motion did not name a specific expert and
thus, did not state that any specific expert would have been available to testify at
the trial.
The State’s response to the 3.850 motion contended that the claim in Ground
One—the issue concerning counsel’s failure to present an expert
ophthalmologist—was insufficiently pled because it did not name the witness that
should have been called, did not set forth the testimony that the witness would
present, did not allege that the witness would have been available to testify at trial,
and did not set forth the prejudice to the defendant.2 In support of its arguments,
the State cited Nelson, 875 So. 2d 579, and focused mainly on the failure to
specifically name a witness and allege that such a witness would have been
available to testify. The State argued that Nelson’s requirement to identify a
witness applied equally to a fact witness and an expert witness.
Without holding a hearing and without an explanation, the trial court issued
an order striking the motion and allowing Lucas thirty days to file an amended
motion. Lucas then filed a motion for rehearing, which was denied. He did not
file an amended 3.850 motion, but filed his pro se notice of appeal to the Fourth
2. The State’s response did not address the other three claims in the 3.850
motion.
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District Court of Appeal. The district court, relying on Terrell v. State, 9 So. 3d
1284 (Fla. 4th DCA 2009), reversed the trial court’s order. Lucas, 147 So. 3d at
612. Quoting Terrell, the district court held:
Although the defendant is usually required to identify fact witnesses
by name, we are aware of no authority requiring the defendant to
provide the name of a particular expert where the defendant claims
that trial counsel failed to secure an expert in a named field of
expertise. We thus do not agree that the defendant’s postconviction
claim was facially insufficient.
Id. The district court concluded that Lucas’s postconviction motion was facially
sufficient because it explained the relevance and substance of the expected
testimony from an expert ophthalmologist and alleged that, but for the error of
counsel, the outcome of the proceedings would have been different. Id. The State
sought review of the district court’s decision in this Court, arguing that it conflicts
with our decision in Nelson. We granted review and appointed counsel to
represent Lucas.
II. ANALYSIS
In this analysis, we must determine whether a 3.850 motion is sufficient if it
sets forth a factual basis demonstrating that trial counsel knew or should have
known that an expert in a specific field of expertise could have offered testimony
that would reasonably have resulted in a different outcome. Our review of this
question of law is de novo. Nelson, 875 So. 2d at 581.
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We turn first to Florida Rule of Criminal Procedure 3.850(c), which states
the required contents of a postconviction motion and provides:
(c) Contents of Motion. The motion must be under oath
stating that the defendant has read the motion or that it has been read
to him or her, that the defendant understands its content, and that all
of the facts stated therein are true and correct. The motion must also
include an explanation of:
(1) the judgment or sentence under attack and the court that
rendered the same;
(2) whether the judgment resulted from a plea or a trial;
(3) whether there was an appeal from the judgment or sentence
and the disposition thereof;
(4) whether a previous postconviction motion has been filed,
and if so, how many;
(5) if a previous motion or motions have been filed, the reason
or reasons the claim or claims in the present motion were not raised in
the former motion or motions;
(6) the nature of the relief sought; and
(7) a brief statement of the facts and other conditions relied on
in support of the motion.
We also reiterate the requirements for proving a claim of ineffective assistance of
counsel that were set forth by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). Strickland held that a defendant must show that
counsel’s performance was deficient and that the deficient performance prejudiced
the defense, which requires a showing that the errors were so serious as to deprive
the defendant of “a trial whose result is reliable.” Id. at 687.
With the requirements of rule 3.850 and the legal standard set forth in
Strickland in mind, we turn to the State’s arguments. The State contends that in
making a sufficient claim for ineffective assistance of counsel for failing to consult
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or call an expert, in addition to the express requirements of rule 3.850, we required
in Nelson that the motion name the expert witness and attest that the witness would
have been available to testify at trial. In Nelson, the defendant claimed in pertinent
part that counsel was ineffective for failing to call several witnesses to testify.
Nelson, 875 So. 2d at 581. Three of the four witnesses at issue in Nelson were
named in the motion, and one was an unnamed blood spatter expert. Id. at 581 n.1.
The trial court in Nelson dismissed the claim as insufficient because the motion did
not allege the witnesses would have been available to testify at trial. Id. On
appeal, the Fifth District in Nelson v. State, 816 So. 2d 694, 695-96 (Fla. 5th DCA
2002), affirmed and held that a claim of ineffective assistance for failing to call
certain witnesses must allege that the witnesses would have been available for trial.
The district court’s decision in Nelson did not address any failure to identify a
specific expert witness.
We granted review of the Fifth District’s decision in Nelson to resolve the
conflict issue of “whether a defendant alleging that counsel was ineffective for
failing to call, interview, or investigate witnesses at trial must specifically allege in
his or her postconviction motion that the witnesses would have been available to
testify at trial had counsel called them.” Nelson, 875 So. 2d at 581 (emphasis
added). We mentioned the identity of witnesses only in passing, stating:
As noted by the parties in this case, in Gaskin v. State, 737 So.
2d 509, 514 n.10 (Fla. 1999), this Court stated in a footnote that a
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defendant asserting ineffective assistance of counsel for failing to call
certain witnesses is not required under rule 3.850(c) to allege the
names of witnesses, the substance of their testimony, or their
availability to testify at trial. This statement was overbroad in respect
to the requirement to plead what a witness’s testimony would have
been and the witness’s availability to have testified at trial. . . . To the
extent that the footnote in Gaskin is inconsistent with this opinion, we
recede from it.
Id. at 582-83 (footnote omitted) (emphasis added). Thus, our decision in Nelson
turned on the requirements that the motion allege what the witness’s testimony
would have been and the fact that the witness would have been available to testify
at trial. Nelson was silent on whether the motion must name a specific expert
when counsel is alleged to have been ineffective for failing to consult or present an
expert.
Justice Lewis dissented in Nelson and concluded that although availability to
testify is relevant to the merits of the motion, an allegation containing such “magic
words” should not be required to render the motion legally sufficient. Nelson, 875
So. 2d at 585 (Lewis, J., dissenting). Justice Lewis stated:
Subsumed within the allegation of the failure to present a witness at
trial of which counsel was aware is the underlying premise that a
witness was available for trial and would have testified if presented.
Unquestionably, if a witness was not available, the petitioner will fail
to demonstrate the requisite prejudice prong of Strickland. However,
mandating that a petition include the four “magic words”—“was
available for trial”—most assuredly creates an additional pleading
element, not required by the applicable rule.
Id. Justice Pariente joined in this dissent.
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There is no question that when the ineffective assistance claim alleges trial
counsel should have presented a fact witness, such witness must be named and his
or her availability attested to. See Booker v. State, 969 So. 2d 186 (Fla. 2007).
However, rule 3.850 does not expressly call for the name of a specific expert
witness, and the issue in Nelson was not whether a specific expert must be named.
Thus, we must decide if we have construed Nelson to require that when a claim is
made that counsel should have consulted or called an expert in a specific field of
expertise, that expert must be specifically identified and shown to have been
available to testify at trial.
The State also relies on Bryant v. State, 901 So. 2d 810 (Fla. 2005), to argue
that the postconviction motion must specifically name the expert and allege that
the expert would have been available to testify at trial. In Bryant, where the issue
concerned counsel’s failure to obtain a false confession expert, we cited Nelson
only for the proposition that a defendant is required to allege what testimony
defense counsel could have elicited and how the failure to consult or call the
witness prejudiced the case. Id. at 821. Even though the “false confession expert”
was not a named witness in Bryant, we did not rely on that as a ground to find that
the claim was legally insufficient. Id. To clarify the deficiency in the motion in
Bryant, we explained, “Without more specific factual allegations, such as proposed
testimony, this claim is insufficient.” Id. at 822. Therefore, in Bryant we did not
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hold that the motion must allege that a specific witness has been obtained, or even
that the claim must name a specific witness, but that the motion must provide
specific factual allegations about the proposed testimony to be sufficient.
Similarly, in Jennings v. State, 123 So. 3d 1101, 1122 (Fla. 2013), one of the
issues was whether counsel was ineffective for failing to call any witness to
challenge the forensic evidence at trial. We found the claim legally insufficient
because it did not allege “what specific information other experts would have been
able to offer or how this presentation would have impacted the case.” Id. at 1123.
We added, “[w]ithout more specific factual allegations about how further
investigation or challenge of the State’s evidence would have benefitted Jennings,
trial counsel cannot be deemed deficient.” Id. In reaching this holding, we cited
Bryant and Nelson, and did not find the failure to identify a specific forensic expert
as a reason to find the claim legally insufficient. Id.
Thus, the main concern we have voiced regarding postconviction claims
based on uncalled and unnamed expert witnesses has been the failure to allege
sufficient facts concerning the necessity of the uncalled expert and the testimony
the expert could have provided at trial. In that same vein, the Fourth District
concluded that “[a]ppellant’s motion sufficiently explained the relevance and
substance of the expected testimony and alleged that the outcome of the
proceedings would have been different.” Lucas, 147 So. 3d at 612. We agree.
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As noted earlier, Lucas’s postconviction motion claimed that counsel was
ineffective in failing to consult or hire an expert witness in the area of eye
injuries—an ophthalmologist—to rebut the State’s claim of “permanent damage”
as an element of aggravated battery. Lucas based this claim in part on the victim’s
testimony that she needed surgery but could not afford it, and on the testimony of
the State’s expert, Dr. John Clark, an oral maxillofacial surgeon, who attested to
the victim’s eye socket fractures. According to the motion, Dr. Clark concluded
that the victim did not need eye surgery because the eye was functioning and
moving, but noted that an ophthalmologist would be better suited to examine the
victim. The motion set forth evidence showing that Dr. Clark also reviewed the
report of an attending ophthalmologist who examined the victim, which indicated
the victim would “be okay,” but recommended a specialist if she encountered
difficulties. According to the motion, the ophthalmologist also stated in his report
that if the victim suffered further blurred vision he would refer her to another
doctor to treat with medication. Lucas argued that this report sufficiently apprised
counsel that a consultation was in order as nothing conclusively established the
element of permanent injury. Moreover, the motion alleged that the prosecutor
presented Dr. Clark’s testimony in support of the argument that there was
“permanent injury” or “disfigurement.” Based on these alleged facts, Lucas
contended that counsel had a duty to present an expert ophthalmologist to rebut
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any presumption of a permanent injury that could not be repaired through surgery
or medication. Lucas claimed that if the jury heard expert testimony that the injury
could be corrected, and thus was not permanent, the outcome of the proceeding
would have been different.
These allegations of fact demonstrate the specificity required to show why
an ophthalmology expert was said to be necessary based on the elements of the
aggravated battery charge, the expert testimony presented by the State, and the
portions of the record that supported a claim that an ophthalmology expert could
have shown that the eye injuries were not permanent or disfiguring. We are hard
pressed to find that a motion could be any more specific in alleging facts
supporting why an expert should have been called, what the expert could have
testified to, and the prejudice resulting from the failure to present such a witness.
Fact witnesses and expert witnesses are distinguishable. An expert witness
is used “[i]f scientific, technical, or other specialized knowledge will assist the trier
of fact in understanding the evidence or in determining a fact in issue.” See
§ 90.702, Fla. Stat. (2015). However, a fact witness is used if that witness has
personal knowledge of the facts of a case. See § 90.604, Fla. Stat. (2015). If a
defendant alleges in a rule 3.850 motion that a fact witness should have been called
by counsel because he or she could have testified as to certain personal knowledge
of a matter, it logically follows that the defendant can and must identify that fact
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witness and allege that the witness would have been available to testify at trial.
However, the same conclusion is not applicable to an expert witness. If a
defendant alleges that an expert witness should have been called by counsel
because he or she could have testified about certain scientific, technical, or other
specialized knowledge, that testimony could be provided by any number of expert
witnesses in that field. Accordingly, we cannot hold that a defendant is always
required to name a specific expert witness and show that the specific expert
witness would have been available to testify at trial in order to render a rule 3.850
motion legally sufficient.
III. CONCLUSION
For the foregoing reasons, we approve the decision of the Fourth District in
this case and hold that a motion filed pursuant to rule 3.850 alleging that trial
counsel was ineffective for failing to consult or present an expert in a named field
of expertise need not, in every case, name a specific expert and attest that the
specific expert would have been available to testify at trial.
It is so ordered.
PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.
CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
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CANADY, J., dissenting.
Although I originally voted to grant jurisdiction in this case, I have now
concluded that there is no conflict between the case on review and our decision in
Nelson. Accordingly, I would discharge this case.
The holding in Nelson was that “a facially sufficient postconviction motion
alleging the ineffectiveness of counsel for failing to call certain witnesses must
include an assertion that those witnesses would in fact have been available to
testify at trial.” 875 So. 2d at 584. But the decision of the Fourth District in Lucas
contains no holding on that issue. Regarding the disputed claim, the only error
identified in Lucas is the trial court’s failure “to follow” the Fourth District’s
“binding precedent” that there is no requirement for a “ ‘defendant to provide the
name of a particular expert where the defendant claims that trial counsel failed to
secure an expert in a named field of expertise.’ ” 147 So. 3d at 612 (quoting
Terrell v. State, 9 So. 3d 1284, 1289 (Fla. 4th DCA 2009)). Although the Fourth
District’s opinion mentions the trial court’s determination that the motion was
facially insufficient because it did not “allege that the witness was available to
testify at trial,” id. (citing Nelson, 875 So. 2d at 583), it contains no discussion of
that determination. Thus, there is not a sufficient basis to determine that conflict
exists between Lucas and Nelson.
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If the majority believes that Lucas contains a holding relating to the failure
to allege availability to testify at trial that is in conflict with Nelson’s holding on
that issue, the majority should either quash Lucas or expressly recede from
Nelson’s holding to the extent that it applies to expert witnesses. It is illogical for
the Court to exercise conflict jurisdiction based on a conflict with one of our prior
decisions, then approve the decision on review but fail to recede at least in part
from our prior decision. If there is conflict between the holdings of two decisions,
there must be an error in one of the two decisions. The Court should identify
which decision contains the error.
POLSTON, J., concurs.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
Fourth District - Case No. 4D14-172
(Broward County)
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Consiglia Terenzio,
Bureau Chief, Monique Rolla, Assistant Attorney General, and Luke Robert
Napodano, Assistant Attorney General, West Palm Beach, Florida,
for Petitioner
Michael March Brownlee of Fisher Rushmer, P.A., Orlando, Florida,
for Respondent
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