Opinion
No. 1D22-643.
05-03-2023
Michael ALLEN, Appellant, v. STATE of Florida, Appellee.
Rachael E. Reese of O'Brien Hatfield Reese, P.A., Tampa, for Appellant. Ashley Moody , Attorney General, and David Welch , Assistant Attorney General, Tallahassee, for Appellee.
Rachael E. Reese of O'Brien Hatfield Reese, P.A., Tampa, for Appellant.
Ashley Moody , Attorney General, and David Welch , Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam.
Michael Allen appeals the denial of his postconviction motion. We affirm.
After his conviction and sentence were affirmed on direct appeal in Allen v. State, 279 So.3d 646 (Fla. 1st DCA 2019), Appellant sought postconviction relief under rule 3.850, Florida Rules of Criminal Procedure. He alleged that his defense counsel was ineffective, listing several acts he claims were deficient performance of counsel serious enough to meet the standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Pagan v. State, 29 So.3d 938, 948-49 (Fla. 2009) (applying Strickland to claims of ineffective assistance of counsel). He also alleged that the State's key witness recanted her trial testimony, constituting newly discovered evidence entitling him to postconviction relief.
After the State's response, the postconviction court summarily denied certain grounds asserted by Appellant and attached portions of the record it found conclusively refuted Appellant's claims. The court scheduled an evidentiary hearing on the other four grounds, including claim of the newly discovered evidence of the recantation by a State's witness.
The postconviction court summarily denied relief on ground 1 (counsel's failure to object to the strike of a Black potential juror); ground 3ii (counsel's failure to object to standard jury instruction on aggravated battery); and ground 4 (counsel's failure to successfully exclude evidence of victim's injuries). Ground 4 is not at issue on appeal.
The postconviction court denied relief, after an evidentiary hearing, on ground 2 (counsel's failure to call a defense witness); ground 3i (counsel's failure to object to the jury instruction on lesser-included offense); ground 5 (counsel's advice not to testify); and ground 6 (State's witness recantation of trial testimony).
Following the testimony of the witnesses and a review of the trial transcript, the postconviction court made findings of fact on each ground at issue at the evidentiary hearing. The court made specific findings on the credibility of the witnesses and the weight of the evidence, including the testimony of Appellant's trial counsel and the State's witness who recanted her trial testimony. The court denied postconviction relief on each ground raised by Appellant, detailing its findings and conclusions in the written order.
On appeal, Appellant challenges the postconviction court's credibility determinations from the evidentiary hearing. However, an appellate court "does not substitute its judgment for that of the trial court on questions of the credibility of witnesses and the appropriate weight to be given the evidence." Taylor v. State, 62 So.3d 1101, 1113 (Fla. 2011).
Appellant also discusses the sufficiency of the allegations in the four grounds at issue in the hearing. But the sufficiency of the allegations is not at relevant here since the postconviction court set an evidentiary hearing on the allegations. See Fla. R. Crim. P. 3.850(f)(8); Burris v. State, 68 So.3d 338 (Fla. 1st DCA 2011) (holding that a facially sufficient motion for postconviction relief requires an evidentiary hearing to determine disputed facts to refute asserted grounds).
Likewise, "[w]hen reviewing a trial court's determination relating to the credibility of a recantation, this Court is `highly deferential' to the trial court and will affirm the lower court's determination so long as it is supported by competent, substantial evidence." Sweet v. State, 248 So.3d 1060, 1066 (Fla. 2018) (citations omitted). Applying these standards of review, the postconviction court's denials of the four grounds at issue in the evidentiary hearing are affirmed.
Appellant also challenges the postconviction court's summary denial of two grounds. He argues that the allegations of ineffective assistance of counsel in these grounds were facially sufficient. He also states generally and without elaboration that the attachments to the court's order do not conclusively refute his ineffective assistance claims.
The postconviction court's summary denial of Appellant's claim that counsel was ineffective for failing to object to the State's strike of a Black venireman was based on the court's finding that even if counsel could have contested the strike, no prejudice as required by Strickland was shown. Attached to the court's order summarily denying this ground was the portion of the jury selection transcript consisting of the discussion outside the jury's presence. Neither the Black potential juror nor his replacement in the selection process served on the jury. The postconviction court's finding that Appellant failed to establish the prejudice prong required to find counsel ineffective was therefore a proper application of the law to the facts in the transcript. See Pryear v. State, 243 So.3d 479, 482-83 (Fla. 1st DCA 2018) (holding that failure to object to juror strike as racially motivated is not normally basis for postconviction relief; proof of bias of a member of the jury that served is needed to show Strickland-type prejudice).
Finally, Appellant fails to establish error in the summary denial of his claim of ineffective assistance of counsel for allowing the court to instruct the jury using the standard instruction for aggravated battery. The postconviction court attached to its order the information charging Appellant with violation of the aggravated battery statute. Relying on Calloway v. State, 37 So.3d 891, 894 (Fla. 1st DCA 2010), the postconviction court found that any objection to the standard instruction by defense counsel would have been overruled. As a result, the court correctly denied postconviction relief since counsel cannot be found ineffective for failing to raise a meritless objection. See Troy v. State, 57 So.3d 828, 843 (Fla. 2011).
The denial upon the evidence and argument presented at the evidentiary hearing on four grounds and the summary denial of postconviction relief on two grounds is therefore
AFFIRMED.
Lewis, Bilbrey, and Kelsey, JJ., concur.