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Ineffective Assistance of Counsel

Posted by John Rutkowski | Aug 09, 2019 | 0 Comments

Criminal law -- Possession of firearm by a convicted felon -- Post conviction relief -- Counsel -- Ineffectiveness -- Failure to call co-defendant as witness. Error to summarily deny claim that counsel was ineffective for misadvising defendant concerning the maximum penalty he faced resulting in defendant rejecting plea offer. Record showing that defendant was informed of the lowest permissible sentence does not conclusively refute claim that counsel provided incorrect advice as to the maximum legal sentence. Trial court erred in summarily denying facially sufficient claim that counsel was ineffective for failing to call co-defendant who would have allegedly exonerated defendant based on reasoning that co-defendant would not have testified in such a way as to incriminate himself. If a defendant makes a facially sufficient claim alleging that counsel was ineffective for failing to call a witness, the court may not summarily deny that claim based on assumption that co-defendant would invoke Fifth Amendment. Question certified: Does a criminal defendant have to allege a basis for knowing an uncalled witness would testify favorably in order to present a legally sufficient claim in a Rule 3.850 motion?

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John Rutkowski

Mr. Rutkowski has been practicing law for the past twenty-four years. Prior to going to law school Mr. Rutkowski served as a deputy sheriff before retiring to attend law school. Upon graduating law school Mr. Rutkowski served as a prosecutor in Florida before going in to private practice.

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John P. Rutkowski, Attorney at Law, is focused on all aspects of Criminal Defense, State and Federal Courts, Post Conviction Relief, Criminal Appeals and Traffic Offenses. Contact me today for a free telephone consultation.

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