Case Number: 5D16-3195
Judge: PER CURIAM
Court: IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
Plaintiff's Attorney: Carmen F. Corrente
Assistant Attorney General
Rachael E. Bushey
Description: Following a jury trial, Pamphile was convicted of robbery with a firearm, aggravated
assault with a firearm, and third-degree grand theft. This court affirmed his convictions
and sentences. Pamphile v. State, 113 So. 3d 949 (Fla. 5th DCA 2013).
In ground three of his rule 3.850 motion, Pamphile alleged that his trial counsel
was ineffective by failing to object to improper prosecutorial comments made during
closing argument. Specifically, he alleged that the prosecutor misstated facts regarding
which perpetrator had a gun during the robbery and further misled the jury to believe that
he had confessed to the crime, which he had not. Pamphile attacks the relevant portion
of the closing argument, in which the prosecutor argued:
Nobody, other than Mr. Pamphile, has ever said that anyone other than him had the gun . . . [the victim] said Mr. Pamphile had the gun. . . . [T]he gun was found on the rear floorboard where Mr. Pamphile was sitting.
Pamphile further alleged that he suffered prejudice as a result because the jury relied on
the improper comments in rendering its verdict.
Ground three of Pamphile’s rule 3.850 motion was facially sufficient.
Misstatements of fact during closing argument are objectionable. See Skanes v. State,
821 So. 2d 1102, 1105 (Fla. 5th DCA 2002) (“[T]he misstatement of testimony during
closing argument may prove to be reversible error.” (citing State v. Cutler, 785 So. 2d
1288 (Fla. 5th DCA 2001))).
In summarily denying ground three, the postconviction court concluded that
Pamphile had shown neither deficient performance nor prejudice, attaching transcript
excerpts of witness testimony from the trial. However, those excerpts do not conclusively
refute Pamphile’s claim—indeed, they tend to support the claim. First, the attachments
do not reflect that Pamphile made a statement admitting to his presence at the robbery.
Second, the excerpts include testimony from the victim that a co-defendant, not Pamphile,
was in possession of the firearm. Third, the excerpts include testimony that the gun was
found on the rear floorboard where the co-defendant, not Pamphile, was sitting.
Outcome: On remand, the trial court shall either attach records that conclusively refute ground three of Pamphile’s motion or hold an evidentiary hearing.