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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JOSEPH PEPIN,
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant,
DISPOSITION THEREOF IF FILED
v.
CASE NO. 1D03-634
STATE OF FLORIDA,
Appellee.
___________________________/
Opinion filed May 29, 2003.
An appeal from the Circuit Court for Suwannee County.
Thomas J. Kennon, Jr., Judge.
Baya Harrison, III, Monticello, for Appellant.
Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General,
Tallahassee, for Appellee.
PER CURIAM.
The appellant challenges the trial court's order summarily denying his
postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850.
Because the trial court failed to attach portions of the record to conclusively refute the
appellant's claim that counsel was ineffective for failing to call a witness, we reverse.
We affirm all other issues raised in the appellant's motion without discussion.

The appellant was convicted of two counts of solicitation to commit sexual
battery and one count of attempted capital sexual battery and was sentenced to
concurrent terms of 25 years' imprisonment and concurrent terms of 10 years' sex
offender probation. The appellant alleged that his counsel was ineffective for failing
to call a witness. In order to assert a facially sufficient claim that counsel was
ineffective for failing to call a witness, the appellant must identify the witness, the
content of the witness's expected testimony, and assert how he is prejudiced by the
omission of the witness's testimony. State v. Pelham, 737 So. 2d 572, 573 (Fla. 1st
DCA 1999). The appellant alleges that counsel should have called Toni Papillion to
testify that the children interacted with the appellant in a "friendly, calm affectionate
and confident way" after the alleged offense occurred. The appellant further alleges
that he was prejudiced by the omission of this testimony because Ms. Papillion's
testimony would have refuted a police officer's testimony that the appellant confessed
to committing most of the acts. Thus, the appellant alleged a facially sufficient claim
of ineffective assistance of counsel for failing to call a witness to testify.
The appellant stated that he testified at trial and denied all of the allegations made
by the children, so the jury had to determine who was more credible, the police officer
or the appellant. If Ms. Papillion's testimony would have increased the credibility of
the appellant's testimony, then there is a reasonable probability that her testimony may
2

have changed the outcome of the trial. See Spencer v. State, 28 Fla. L. Weekly S35,
S37 (Fla. Jan 9, 2003). Because the trial court failed to attach any portion of the
record to refute this claim, this claim is reversed and remanded for the attachment of
record portions to conclusively refute the appellant's claim or an evidentiary hearing.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
BOOTH, VAN NORTWICK, and HAWKES, JJ., CONCUR.

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