Kennedy v. State, 547 So. 2d 912 (Fla. 1989). · Go Syfert
Kennedy v. State, 547 So. 2d 912 (Fla. 1989). Cases Citing This Book View Copy Cite
“a defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing.”
181 citation events (104 in the last 25 years) across 5 distinct courts.
Strongest positive: Vickery v. State (fladistctapp, 2004-03-19)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 50 distinct citers.
examined Cited as authority (verbatim quote) Vickery v. State (3×) also: Cited as authority (rule), Cited "see"
Fla. Dist. Ct. App. · 2004 · signal: see · quote attribution · 1 verbatim quote · confidence high
a court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.
discussed Cited as authority (verbatim quote) Waterhouse v. State (2×) also: Cited as authority (rule)
Fla. · 2001 · signal: see · quote attribution · 1 verbatim quote · confidence high
a defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing.
discussed Cited as authority (rule) SANTIAGO MILIAN A/K/A SANTIAGO JIMENEZ v. THE STATE OF FLORIDA
Fla. Dist. Ct. App. · 2023 · confidence medium
See Waterhouse v. State, 792 So. 2d 1176, 1182 (Fla. 2001) (noting that a claim of ineffective assistance of counsel requires a defendant to demonstrate deficient performance and that such deficient performance prejudiced the defense, and “because the Strickland standard requires establishment of both prongs, when a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong.”) (citing Strickland v. Washington, 466 U.S. 668, 697 (1984)) (“[T]here is no reason for a court deciding an ineffective assistance claim …
discussed Cited as authority (rule) Cano v. Secretary, Department of Corrections
M.D. Fla. · 2020 · confidence medium
These assertions by the Defendant are conclusory and insufficient to meet the Defendant’s burden of establishing a prima facie case based upon a legally valid claim.13 Thus, his motion is denied on this basis. 12 See Martinez v. State, 655 So. 2d 166, 168 (Fla. 3d DCA 1995) (citing Knight v. State, 394 So. 2d 997 (Fla. 1981)). 13 See, e.g., Kennedy v. State, 547 So. 2d 912, 913 (Fla. 1989).
discussed Cited as authority (rule) JORGE HANANIA v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2019 · confidence medium
See Knight v. State, 923 So. 2d 387, 399 (Fla. 2005) (noting that the defendant's claim that counsel was ineffective for not challenging the State's experts was conclusory and insufficient when the defendant did not allege what particular -6- challenge counsel should have made); Kennedy v. State, 547 So. 2d 912, 913 (Fla. 1989) (stating that a defendant seeking postconviction relief "must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the…
discussed Cited as authority (rule) Callaway v. State (2×)
Fla. Dist. Ct. App. · 2016 · confidence medium
Id. at 694 , 104 S.Ct. 2052 ; Hill v. Lockhart, 474 U.S. 52, 59 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985); Kennedy v. State, 547 So.2d 912, 913-14 (Fla.1989); Zerquera v. State, 583 So.2d 348 , 349 n. 1 (Fla. 3d DCA 1991). 1.
discussed Cited as authority (rule) Gus Fennell v. Secretary, Florida Department of Corrections
11th Cir. · 2014 · confidence medium
LeCroy v. Dugger; 727 So.2d 236, 239 (Fla.1998) (quoting Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)) (explaining the standard Florida courts use to determine whether to grant a post-conviction petitioner an evidentiary hearing on an ineffective assistance claim).
cited Cited as authority (rule) Quawn M. Franklin v. State of Florida
Fla. · 2014 · confidence medium
Id. at 239 (quoting Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)).
cited Cited as authority (rule) Quawn M. Franklin v. Michael D. Crews, etc.
Fla. · 2014 · confidence medium
Id. at 239 (quoting Kennedy v. State, 547 So. 2d 912, 913 (Fla. 1989)).
discussed Cited as authority (rule) Foster v. State
Fla. · 2013 · confidence medium
The defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record.... ” Allen v. State, 854 So.2d 1255, 1258-59 (Fla.2003) (quoting Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)).
cited Cited as authority (rule) Pope v. Secretary for the Department of Corrections
11th Cir. · 2012 · confidence medium
Kennedy v. State, 547 So.2d 912, 913 (Fla.1989) (per curiam).
cited Cited as authority (rule) Ferrera v. State
Fla. Dist. Ct. App. · 2010 · confidence medium
Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).
discussed Cited as authority (rule) Oquendo v. State (2×) also: Cited "see"
Fla. Dist. Ct. App. · 2008 · confidence medium
Mere conclusory allegations are not sufficient to meet this burden.” Id. at 229; see also Morgan v. State, 991 So.2d 835, 841 (Fla.2008); Doorbal v. State, 983 So.2d 464, 482-84 (Fla.2008); McDonald v. State, 952 So.2d 484, 489-90 (Fla.2006); Jones v. State, 928 So.2d 1178, 1182 (Fla.2006); Parker v. State, 904 So.2d 370, 378 (Fla.2005); Wright v. State, 857 So.2d 861, 873 (Fla.2003); Reaves v. State, 826 So.2d 932, 939-40 (Fla.2002); Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000); LeCroy v. Dugger, 727 So.2d 236, 239-41 (Fla.1998); Jackson v. Dugger, 633 So.2d 1051, 1054 (Fla.1993); Kenn…
discussed Cited as authority (rule) Blackwood v. State
Fla. · 2006 · confidence medium
"The defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant." LeCroy v. Dugger, 727 So.2d 236, 239 (Fla.1998) (quoting Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)).
cited Cited as authority (rule) Davis v. State
Fla. Dist. Ct. App. · 2006 · confidence medium
Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989).
cited Cited as authority (rule) Lott v. State
Fla. · 2006 · confidence medium
Wright v. State, 857 So.2d 861, 877 (Fla.2003) (citing Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989)).
examined Cited as authority (rule) Knight v. State (3×)
Fla. · 2005 · confidence medium
Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).
cited Cited as authority (rule) Phillips v. State
Fla. · 2004 · confidence medium
See Freeman v. State, 761 So.2d 1055 (Fla.2000); Kennedy v. State, 547 So.2d 912, 913 (Fla.1989). 1.
discussed Cited as authority (rule) Griffin v. State (2×) also: Cited "see, e.g."
Fla. · 2004 · confidence medium
Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).
cited Cited as authority (rule) Gordon v. State
Fla. · 2003 · confidence medium
LeCroy, 727 So.2d at 239 (quoting Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)).
discussed Cited as authority (rule) Moore v. State
Fla. Dist. Ct. App. · 2003 · confidence medium
In order to plead an ineffective assistance of counsel claim, “[t]he defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant.” Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).
cited Cited as authority (rule) Allen v. State
Fla. · 2003 · confidence medium
The defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record...." Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).
examined Cited as authority (rule) Wright v. State (3×) also: Cited "see"
Fla. · 2003 · confidence medium
See Atwater v. State, 788 So.2d 223 (Fla.2001); Kennedy v. State, 547 So.2d 912, 913 (Fla.1989) ("A defendant may not simply file a motion for postconviction relief *874 containing conclusory allegations that his or her trial counsel was ineffective....").
cited Cited as authority (rule) State v. Coney
Fla. · 2003 · confidence medium
LeCroy, 727 So.2d at 239 (quoting Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)).
cited Cited as authority (rule) Washington v. State
Fla. · 2002 · confidence medium
LeCroy, 727 So.2d at 239 (quoting Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)).
cited Cited as authority (rule) Washington v. State
Fla. · 2002 · confidence medium
LeCroy, 727 So.2d at 239 (quoting Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)).
discussed Cited as authority (rule) Lawrence v. State (2×) also: Cited "see"
Fla. · 2002 · confidence medium
Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989) (citations omitted); see also Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000).
discussed Cited as authority (rule) Reaves v. State (2×) also: Cited "see"
Fla. · 2002 · confidence medium
Sireci v. State, 773 So.2d 34 , 40 *941 n. 11 (Fla.2000) ("A defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing.") (quoting Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)).
cited Cited as authority (rule) Moore v. State
Fla. · 2002 · confidence medium
See Ragsdale v. State, 720 So.2d 203, 207 (Fla.1998); Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).
cited Cited as authority (rule) Foster v. State
Fla. · 2002 · confidence medium
Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989) (citations omitted).
discussed Cited as authority (rule) Wike v. State
Fla. · 2002 · confidence medium
Accordingly, this issue has been adequately preserved for appellate review. [6] In support of that proposition, the trial court cited Wright v. State, 688 So.2d 298 (Fla.1996), in which this Court stated, "[T]he general qualification process is not `a critical stage of the proceedings requiring the defendant's presence.'" [7] Because the Strickland standard requires establishment of both the deficiency and the prejudice prongs, when a defendant fails to make a showing as to one of the prongs, it is not necessary to delve into whether the defendant has made a showing as to the other prong. 466 …
discussed Cited as authority (rule) Floyd v. State
Fla. · 2002 · confidence medium
A "movant is entitled to an evidentiary hearing on a claim of ineffective assistance of counsel if he alleges specific `facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant.'" Gaskin, 737 So.2d at 516 (quoting Roberts v. State, 568 So.2d 1255, 1259 (Fla.1990)); see also Mendyk, 592 So.2d at 1079; Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).
discussed Cited as authority (rule) Thompson v. State (2×) also: Cited "see"
Fla. · 2001 · confidence medium
See Strickland, 466 U.S. at 697 , 104 S.Ct. 2052 ("[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one."); Downs v. State, 740 So.2d 506 , 518 n. 19 (Fla.1999) (finding no need to address prejudice prong where defendant failed to establish deficient performance element); Kennedy v. State, 547 So.2d 912, 914 (Fla. 1989) (noting that where defendant fails to establish prejudice prong court need not determine whether counsel's performance was deficient).
discussed Cited as authority (rule) Atwater v. State (2×) also: Cited "see"
Fla. · 2001 · confidence medium
See Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); Provenzano v. Moore, 744 So.2d 413 (Fla.1999); Blanco v. State, 706 So.2d 7 (Fla.1997); Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)("A defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing.").
discussed Cited as authority (rule) Boehm v. State
Fla. Dist. Ct. App. · 2001 · confidence medium
In order to plead an ineffectiveness claim, “[t]he defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant.” See LeCroy v. Dugger, 727 So.2d 236, 239 (Fla.1998)(quoting Kennedy v. State, 547 So.2d 912, 913-14 (Fla.1989)).
discussed Cited as authority (rule) Kopko v. State
Fla. Dist. Ct. App. · 2000 · confidence medium
This issue is further complicated by the fact that the trial court did permit some editing of the tape at trial in order to, in the words of the trial judge below: “allow counsel to edit the most highly prejudicial portions.” In my view, it is a close question whether this obvious trial error on the part of counsel that resulted in the admission of the tape “so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.” Kennedy v. State, 547 So.2d 912, 913-14 (Fla.1989).
discussed Cited as authority (rule) Javers v. State
Fla. Dist. Ct. App. · 2000 · confidence medium
We affirm the trial court’s denial of the appellant’s motion for post-conviction relief made pursuant to rule 3.850, Florida Rules of Criminal Procedure as the issues raised in this motion are successive; see Christopher v. State, 489 So.2d 22, 24 (Fla.1986); Francois v. Wainwright, 470 So.2d 685, 686 (Fla.1985); Songer v. State, 463 So.2d 229, 231 (Fla.1985); and they should have or could have been raised by the appellant on direct appeal; see Johnston v. Dugger, 583 So.2d 657, 660 (Fla.1991); Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).
discussed Cited as authority (rule) Provenzano v. State (2×) also: Cited "see"
Fla. · 1999 · confidence medium
In Kennedy v. State, 547 So.2d 912, 913 (Fla.1989), this Court stated that "[a] motion for postconviction relief can be denied without an evidentiary hearing when the motion and the record conclusively demonstrate that the movant is entitled to no relief." Therefore, it is necessary to address each of Provenzano's claims to determine whether they are legally sufficient to require an evidentiary hearing.
discussed Cited as authority (rule) Gaskin v. State
Fla. · 1999 · confidence medium
The movant is entitled to an evidentiary hearing on a claim of ineffective assistance of counsel if he alleges specific "facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant." Id. at 1259 . [14] See Mendyk v. State, 592 So.2d 1076, 1079 (Fla. 1992); Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).
discussed Cited as authority (rule) Downs v. State
Fla. · 1999 · confidence medium
See LeCroy v. Dugger, 727 So.2d 236 (Fla.1998); Mendyk v. State, 592 So.2d 1076 , 1079 (Fla.), receded from on other grounds by Hoffman v. State, 613 So.2d 405 (Fla.1992); Roberts v. State, 568 So.2d 1255, 1259 (Fla.1990); Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989).
examined Cited as authority (rule) LeCroy v. Dugger (3×)
Fla. · 1998 · confidence medium
Kennedy v. State, 547 So.2d 912, 913-14 (Fla. 1989) (citations omitted).
cited Cited as authority (rule) Williams v. State
Fla. Dist. Ct. App. · 1996 · confidence medium
Kennedy v. State, 547 So.2d 912, 913-14 (Fla. 1989).
cited Cited as authority (rule) Wynn v. State
Fla. Dist. Ct. App. · 1996 · confidence medium
Kennedy v. State, 547 So.2d 912, 913-14 (Fla.1989).
cited Cited as authority (rule) Williamson v. Dugger
Fla. · 1994 · confidence medium
Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989).
cited Cited as authority (rule) Torres-Arboleda v. Dugger
Fla. · 1994 · confidence medium
Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989).
discussed Cited as authority (rule) Charley v. State
Fla. Dist. Ct. App. · 1992 · confidence medium
In Reaves v. State, 593 So.2d 1150 (Fla. 1st DCA 1992), quoting Kennedy v. State, 547 So.2d 912, 914 (Fla.1989), this court held: “Moreover, ‘a court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.’ ” In the instant case, the motion is insufficient because it fails to allege the deficient performance of counsel or how the result of the proceedings would have been different had counsel adequately performed his duties.
cited Cited as authority (rule) Gibbs v. State
Fla. Dist. Ct. App. · 1992 · confidence medium
Kennedy v. State, 547 So.2d 912, 914 (Fla. 1989).
cited Cited as authority (rule) Parker v. State
Fla. Dist. Ct. App. · 1992 · confidence medium
Roberts v. State, 568 So.2d 1255, 1259 (Fla. 1990); Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989); Williams v. State, 553 So.2d 309 (Fla. 1st DCA 1989).
cited Cited as authority (rule) McCoy v. State
Fla. Dist. Ct. App. · 1992 · confidence medium
Johnson v. State, 593 So.2d 206 (Fla. 1992); Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989).
examined Cited as authority (rule) Brown v. State (3×) also: Cited "see"
Fla. · 1992 · confidence medium
Mills v. Dugger, 559 So.2d at 578 ; Kennedy v. State, 547 So.2d at 913.
Edward D. KENNEDY, Petitioner,
v.
STATE of Florida, Respondent.
71678.
Supreme Court of Florida.
Jun 8, 1989.
547 So. 2d 912
Per Curiam.
Cited by 134 opinions  |  Published

PER CURIAM.

Edward D. Kennedy, a prisoner under sentence of death, appeals the trial court's denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We have jurisdiction, article V, section 3(b)(1), Florida Constitution.

Kennedy was convicted of two counts of first-degree murder and sentenced to death for killing Floyd H. Cone and Florida Highway Patrolman Robert P. McDermon. On appeal this Court affirmed the convictions and sentences. Kennedy v. State, 455 So.2d 351 (Fla. 1984). Review was denied by the United States Supreme Court. Kennedy[*913] v. Florida, 469 U.S. 1197, 105 S.Ct. 981, 83 L.Ed.2d 983 (1985).

A death warrant was signed for Kennedy on January 16, 1985. Kennedy's application for extraordinary relief and petition for habeas corpus were filed with this Court on February 3, 1986. The requested relief was denied. Kennedy v. Wainwright, 483 So.2d 424 (Fla. 1986). Kennedy filed an application for stay of execution pending review of a petition for writ of certiorari in the United States Supreme Court, which granted the stay. Kennedy's petition for writ of certiorari in the United States Supreme Court was filed on June 11, 1986. The petition was denied. Kennedy v. Wainwright, 479 U.S. 890, 107 S.Ct. 291, 93 L.Ed.2d 265 (1986).

On January 2, 1987, Kennedy filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 in the circuit court to vacate the judgment and sentence. Kennedy's motion was summarily denied on September 4, 1987. Kennedy's motion for rehearing was also denied, and notice of appeal was filed in this Court on December 17, 1987.

On appeal Kennedy raises nine claims for relief. Eight of these claims were raised in his motion for postconviction relief before the trial court. In his ninth claim, Kennedy argues that he was entitled to an evidentiary hearing with respect to the claims he asserted in his rule 3.850 motion.[1]

In its order denying relief, the trial court correctly noted that six of the claims Kennedy raised were claims that either had been raised or could have been raised on direct appeal. As such, these matters are procedurally barred and cannot be relitigated by motion for postconviction relief under rule 3.850. Maxwell v. Wainwright, 490 So.2d 927 (Fla.) cert. denied, 479 U.S. 972, 107 S.Ct. 474, 93 L.Ed.2d 418 (1986). The trial court's summary denial of this portion of the motion as procedurally barred was proper.

Kennedy's remaining claims concern his alleged ineffective assistance of trial counsel. He argues that his trial counsel was ineffective for two reasons. First, Kennedy contends his trial counsel was ineffective for failing to investigate Kennedy's background adequately in order to present compelling mitigating evidence. Second, he argues that counsel should have submitted to the trial court the videotape of Kennedy's surrender to and arrest by law enforcement to show his remorse over this incident, and argued that the jury should view it.

A motion for postconviction relief can be denied without an evidentiary hearing when the motion and the record conclusively demonstrate that the movant is entitled to no relief. See Agan v. State, 503 So.2d 1254 (Fla. 1987); O'Callaghan v. State, 461 So.2d 1354 (Fla. 1984). A defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing. The defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant. The test for determining whether counsel has been ineffective was established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and is set forth in our opinion in Maxwell v. Wainwright:

A claim of ineffective assistance of counsel, to be considered meritorious, must include two general components. First, a claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and the reliability of the proceeding that confidence in the outcome is undermined.[*914] Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d [674] (1984); Downs v. State, 453 So.2d 1102 (Fla. 1984). A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied. 490 So.2d at 932.

It is clear from the trial court's order that the trial judge was fully aware of his responsibility to review the record and files in this case and to analyze the allegations of ineffective assistance of counsel under the standard enunciated in Strickland.[2] The trial judge, after a thorough examination of the transcript of the trial and a proper application of the requirements of Strickland, made his determination that Kennedy's allegations of ineffective assistance of counsel were insufficient to require an evidentiary hearing. It was the trial judge's conclusion, and we agree, that Kennedy did not demonstrate how the failure to introduce any further information regarding his background other than that which was already before the jury prejudicially affected the outcome of his trial. Likewise, we agree with the trial judge that counsel's decision not to present the videotape of Kennedy's surrender and arrest to the jury was a matter of trial strategy. We find the record supports the trial judge's conclusion that there was no reasonable probability that the admission of this evidence would have altered or affected the outcome of the trial.

We affirm the denial of Kennedy's motion for postconviction relief. It is so ordered.

EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.

1 We note that this, Kennedy's ninth issue, was raised in his posthearing memorandum of law to the trial court.
2 The same passage quoted here from Maxwell appears in the trial court's order denying relief.