The defendant proceeded to trial on attempted murder with a firearm; robbery with a firearm while wearing a mask; attempted robbery with a firearm while wearing a mask; and grand theft. The defendant was represented by privately retained counsel. At the conclusion of trial, the defendant was found guilty of attempted second degree murder with a firearm (a lesser included offense); robbery with a firearm while wearing a mask; attempted robbery with a firearm while wearing a mask; and grand theft. The defendant as sentenced to 20-years in prison on the attempted second-degree murder with a firearm, robbery with a firearm while wearing a mask, and attempted robbery with a firearm while wearing a mask. The defendant was sentenced to 5 years on prison for the grand theft, and all sentences were ordered to run concurrently. The defendant filed a direct appeal which was denied.
The defendant’s family retained the Law Offices of Robert David Malove to review his case and determined if there were any Constitutional violation that could be filed in a Rule 3.850 motion. After obtaining his trial and appellate attorney files we reviewed his entire files, investigated, spoke with the client, spoke with his trial attorney, and researched case law. After a thorough review we filed a Rule 3.850 alleging 6 claims of ineffective assistance of trial counsel. The trial court ordered the state to file a response, we filed a reply to the state’s response, and the trial court granted an evidentiary hearing on claims 2 through 6 of our Rule 3.850 motion.
After a long-heated day of testimony at the evidentiary hearing, the trial court issued a written order granting our Rule 3.850 motion on 4 out of the 5 claims that were addressed at the evidentiary hearing. As to ground two the trial court reasoned that
“As to the allegation that trial counsel was ineffective for failing to object to the prosecutor vouching for Myles Partipilo’s credibility in closing arguments, the Court finds that Defendant has satisfied the two-prong test for ineffective counsel as outlined in Strickland v. Washington, 466 U.S. 668 (1984). Defendant has shown that his trial counsel’s representation fell below an objective standard of reasonableness, and such deficient performance prejudiced Defendant. The co-defendant was the principal witness against the Defendant, and the State, at different times in closing, vouched for that witness’s credibility. Defense counsel’s failure to object to the prosecutor’s vouching allowed the prosecutor to improperly bolster the co-defendant’s credibility, which may have influenced the jury’s verdict. Accordingly, the Court finds that the defense counsel’s failure to object fell below an objective standard of reasonableness and constituted deficient performance. The codefendant’s testimony was vital to the case against the Defendant. As Defendant’s attorney had failed to present an alibi defense and advised Defendant not to testify, the State’s key witness was the most substantial evidence against Defendant. Vouching for his credibility further solidified the impression of the Defendant’s guilt. Counsel’s failure to object and move to strike constituted deficient performance and deprived Defendant of a fair trial and a reliable outcome.”
As to ground three the trial court reasoned that
As to the allegation that trial counsel was ineffective for advising Defendant not to testify, the Court finds that Defendant has satisfied the two-prong test for ineffective counsel. Specifically, Defendant has demonstrated that counsel’s advice not to testify was deficient, and this deficient performance prejudiced Defendant’s case. Defendant states that he did not commit the crimes he was charged with and further claims that he was not present at the scene of the offense. The Defendant had witnesses who had reached out to defense counsel and offered to testify about the Defendant’s alibi. However, defense counsel called none of those witnesses to testify, leaving only Defendant to present evidence for the jury to consider regarding an alibi and his denial of the offenses charged. But because defense counsel advised Defendant against testifying, the jury heard no testimony that would have supported his alibi defense. Depriving an individual of the opportunity to explain to the jury his side of the story crippled Defendant’s ability to present a viable alternative to the State of Florida’s narrative. The Court finds that counsel’s failure to advise the Defendant to testify in a situation like this constituted deficient performance. Indeed, the decision not to testify is a critical decision that ultimately rests with a defendant, but it should be made after consultation with competent counsel. Counsel’s role is to advise and assist the Defendant in making an informed decision. As Defendant’s testimony would have been the only evidence presented for the jury to consider an alibi defense, it was critical that the Defendant be advised to testify to provide an essential counterbalance to the State’s theory of the case. The failure to present this defense at trial due to the counsel’s deficient performance deprived the Defendant of a fair trial and a reliable outcome.
As to ground four the trial court reasoned that
As to the allegation that trial counsel was ineffective for failing to investigate and present evidence regarding an alibi defense, the Court finds that Defendant has satisfied the two-prong test for ineffective counsel established by Strickland. Defendant has shown that his trial counsel’s representation fell below an objective standard of reasonableness, and such deficient performance prejudiced Defendant. With respect to the first prong, a competent attorney would have conducted a reasonable investigation and called the witnesses who could have supported Defendant’s alibi defense and refuted testimony from the state witness. Defendant had witnesses who would have testified that they were with Defendant at the time of the incident. Specifically, the witnesses would have told the jury that at the time of the incident, the Defendant was in his studio, which was in his mother’s garage, making music with friends. Defendant’s mother, who would have been one of the alibi witnesses, testified at the evidentiary hearing that she was on electronic monitoring. The electronic monitoring system could easily verify her whereabouts to corroborate her testimony. Other witnesses would have testified that the Defendant was with them in his mother’s garage at the studio. By not providing this testimony to the jury for consideration, Defendant was deprived of a potentially viable defense to the charge. With respect to the second prong, Strickland requires more than a showing that the errors had some conceivable effect on the outcome. Defendant must demonstrate a reasonable probability, i.e., one that undermines confidence in the outcome-that absent counsel’s errors, the fact finder would have had a reasonable doubt respecting guilt. Strickland, 466 U.S. at 694; see also Lanier v. State, 709 So. 2d 112, 116 (Fla. 3d DCA 1998) (Levy, J., concurring) (“a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors”) (citing Strickland, 466 U.S. at 694-696). Here, the Court finds that Defendant has shown that, because of his trial counsel’s deficient performance, the trial’s outcome would have been different. At the very least, the jury would have had for its consideration testimony from Defendant’s mother, Dorothy Rodriguez, and Carlos Rivera, both of whom testified at the evidentiary hearing that Defendant was at his mother’s home in his garage studio making music and hanging out with his friends at the time of the crime. Granted, the jury could have believed or disbelieved all or any part of either witness’s testimony. But that consideration in deliberations only occurs if the jury is presented with evidence in the first place. Defendant’s counsel did not give any such evidence for the jury to consider. Had the alibi evidence been presented at trial, there 1s a reasonable probability that the mother’s and Mr. Rivera’s testimony could have created a reasonable doubt in the mind of at least one juror, and the outcome may have been different. Defendant has satisfied both Strickland prongs in showing his counsel’s deficient performance was prejudicial.
After the motion was granted a new trial date was scheduled. Prior to the trial we spoke with the assistant state attorney several times, and made a strong case as to how with the new testimony and defense witnesses made the state’s case harder to prove. Ultimately, we were able to get the state to agree to a 10-year sentence on counts one, two and three, and 6.95 years on count four, with credit of 2,501 days our client already served in jail and prison.
Our client was initially sentenced to 20-years day for day, and now with nearly 7 years of jail and prison credit our client will have less than one and a half years until he is released. Our client and his family were especially grateful with the result we achieved.