# Kilgore v. State

> Supreme Court of Florida · November 18, 2010 · 35 Fla. L. Weekly Supp. 665

URL: https://www.frixlaw.com/law-library/cases/9784169

## Case

- **Full name:** Dean KILGORE, Appellant, v. STATE of Florida, Appellee; Dean Kilgore, Petitioner, v. Walter A. McNeil, Etc., Respondent
- **Court:** Supreme Court of Florida
- **Decided:** November 18, 2010
- **Citations:** 35 Fla. L. Weekly Supp. 665; 55 So. 3d 487; 2010 Fla. LEXIS 1976; 2010 WL 4643043
- **Precedential status:** Published
- **Opinion:** Concurrence by Pariente
- **Judges:** Lewis, Polston, Labarga, Perry, Pariente, Quince
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9784169

## How later opinions describe it (automated extraction)

- holding a challenge to the constitutionality of rule 4 — 3.5(d)(4) procedurally barred in postcon-viction proceedings and noting moreover *1028 that “this Court has repeatedly rejected claims that Rule Regulating the Florida Bar 4 — 3.5(d)(4) is unconstitutional”
- holding a challenge to the constitutionality of rule 4–3.5(d)(4) procedurally barred in postconviction proceedings and noting moreover that “this Court has repeatedly rejected claims that Rule Regulating the Florida Bar 4–3.5(d)(4) is unconstitutional”
- concluding that the defendant failed to demonstrate that the proffered evidence had a reasonable probability of changing the outcome, which is a probability sufficient to undermine confidence in the verdict
- holding that a defendant’s postconviction challenge to Florida’s method of execution was procedurally barred because it was not raised on direct appeal

## Opinion text

PARIENTE, J.,
concurring in result.
I do not fully concur in the majority opinion because in my view trial counsel was deficient for failing to adequately investigate Kilgore’s childhood and mental health history during the 1994 penalty phase. Thus, I do not agree that Bobby v. Van Hook, — U.S. —, 130 S.Ct. 13 , 175 L.Ed.2d 255 (2009), is applicable to the deficiency prong of this claim.
As we have explained, “[A]n attorney has a strict duty to conduct a reasonable investigation of a defendant’s background for possible mitigating evidence.” Ragsdale v. State, 798 So.2d 713, 716 (Fla.2001) (quoting State v. Riechmann, 777 So.2d 342, 350 (Fla.2000)). In this case, trial counsel failed to conduct a reasonable investigation by failing to discover additional sources of mitigating evidence available concerning Kilgore’s childhood and mental health history, including evidence with regard to the time Kilgore was institutionalized at the Oakley Training School, where he experienced frequent beatings.
Nonetheless, I concur in the result reached by the majority because I agree that Kilgore failed to establish actual prejudice as to this claim.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9784169. Public record. Not legal advice.