John P. Leonardi v. State ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JOHN PATRICK LEONARDI,
Appellant,
v. Case No. 5D16-1596
STATE OF FLORIDA,
Appellee.
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Opinion filed August 26, 2016
3.850 Appeal from the Circuit Court
for Osceola County,
Jon B. Morgan, Judge.
Donna M. Goerner, Altamonte Springs,
for Appellant.
No Appearance for Appellee.
PER CURIAM.
John Patrick Leonardi appeals the trial court’s order summarily denying his motion
for postconviction relief alleging ineffective assistance of counsel, filed pursuant to Florida
Rule of Criminal Procedure 3.850. We affirm the denial of Leonardi’s motion, except as
to claim one. As to this first claim, we conclude that it was facially insufficient and,
therefore, reverse the summary denial to provide Leonardi an opportunity to correct the
deficiency.
In his first claim, Leonardi asserted that his trial counsel was ineffective for failing
to call a witness, Gino Giardina, to testify at trial. “The failure to call a witness can
constitute ineffective assistance of counsel if the witness might be able to cast doubt on
the defendant’s guilt.” Santos v. State, 152 So. 3d 817, 819 (Fla. 5th DCA 2014) (citing
Gutierrez v. State, 27 So. 3d 192, 194 (Fla. 5th DCA 2010)). For a claim of ineffective
assistance of counsel based on the failure to investigate and call a witness at trial, a
defendant must allege and show the following: (1) the identification of the witness; (2)
the substance of the witness’s testimony; and (3) a description of the prejudice suffered
due to the lack of the testimony by the witness at trial. Tyler v. State, 793 So. 2d 137,
141 (Fla. 2d DCA 2001) (citing Odom v. State, 770 So. 2d 195, 197 (Fla. 2d DCA 2000)).
Additionally, a facially sufficient postconviction motion alleging the ineffectiveness of
counsel for failing to call a witness must also include an assertion that the witness would,
in fact, have been available to testify at trial. Nelson v. State, 875 So. 2d 579, 584 (Fla.
2004).
In the instant case, Leonardi failed to allege in his postconviction motion that the
witness, Giardina, would have been available to testify at trial. A defendant who has filed
a legally insufficient rule 3.850 motion must be given at least one opportunity to correct
the deficiency, unless it is apparent that the defect cannot be corrected. Luckey v. State,
979 So. 2d 353, 355 (Fla. 5th DCA 2008) (citing Spera v. State, 971 So. 2d 754 (Fla.
2007)); Fla. R. Crim. P. 3.850(f). Because the pleading deficiency in claim one may be
correctable, we reverse the summary denial and remand with directions that the trial court
provide Leonardi sixty days to amend claim one of his motion, if, in good faith, he can do
so.
AFFIRMED in part; REVERSED in part; and REMANDED.
ORFINGER, WALLIS, and LAMBERT, JJ., concur.
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