Testimony of the Lawyer Established Inadequacy of His Own Advice to the Defendant

In Deaton v. Dugger, 635 So. 2d 4 (Fla. 1993), the testimony of trial counsel established the inadequacy of the advice given by counsel to the defendant concerning mitigation and thus provided evidentiary support for a finding of deficient performance by counsel. When counsel was asked at the postconviction evidentiary hearing whether he explained to the defendant the mitigating circumstances that could be pursued, counsel responded: "No, except he could testify as to his treatment and how he was emotionally abused as a child. Just very briefly, if he wanted to testify." Deaton, 635 So. 2d at 9.