Smith v. State , 185 So. 3d 585 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ZACHARY O. SMITH, )
)
Appellant, )
)
v. ) Case No. 2D12-3764
)
STATE OF FLORIDA, )
)
Appellee. )
________________________________ )
Opinion filed January 29, 2016.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Collier County; Frederick R. Hardt,
Judge.
Zachary O. Smith, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Susan M. Shanahan,
Assistant Attorney General, Tampa,
for Appellee.
PER CURIAM.
Zachary Smith appeals the denial of his postconviction motion filed
pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of his
motion on all grounds except for the summary denial of his claims alleging ineffective
assistance of counsel for failing to impeach the victim's testimony.
The postconviction court summarily denied Mr. Smith's claim that his trial
counsel was ineffective for failing to investigate and impeach the victim's account of the
acts underlying the charge of lewd and lascivious assault of a minor under the age of
sixteen. Mr. Smith also argues that the trial court erred in denying his claim that
counsel was ineffective for not investigating and examining the victim's statements to
others after the assault. The State did not present any eyewitnesses to or physical
evidence of the crime. Because the victim's testimony was the only evidence
connecting Mr. Smith to this crime, her trustworthiness was critical to the State's case.
The record excerpts the court attached to its order do not conclusively
refute Mr. Smith's claim that he suffered prejudice because trial counsel was ineffective
for not impeaching the only eyewitness's statements. See Pierce v. State, 137 So. 3d
578, 582 (Fla. 2d DCA 2014) (reversing summary denial of postconviction motion where
record did not conclusively refute movant's claim that counsel was ineffective for failing
to impeach the State's only witness—the victim—with prior inconsistent statements);
Bulley v. State, 900 So. 2d 596, 597 (Fla. 2d DCA 2004) (reversing summary denial of
postconviction motion alleging ineffective assistance of counsel that "identified the
witnesses, provided what their testimony would have been, stated that they were
available to testify, and alleged that he was prejudiced by their absence at trial").
Accordingly, we reverse the summary denial of these grounds in Mr.
Smith's motion and remand for an evidentiary hearing. In all other respects, the
postconviction court's order is affirmed.
ALTENBERND, CRENSHAW, and BADALAMENTI, JJ., Concur.
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