Opinion
No. 1D18-3961
07-23-2019
ANTHONY L. AUSTIN, Appellant, v. STATE OF FLORIDA, Appellee.
Anthony L. Austin, pro se, for Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee.
On appeal from the Circuit Court for Duval County.
Russell Healey, Judge.
Appellant was charged with: sale of cannabis (Count One); possession of cocaine (Count Two); and possession of cannabis - less than 20 grams (Count Three). Appellant, unsatisfied with defense counsel's refusal to file a motion to suppress evidence, complained to the court and asked for a different attorney before trial. When the trial court told Appellant he did not get to choose which public defender would represent him, Appellant stated he wished to represent himself and the trial court conducted a lengthy Faretta inquiry, ultimately allowing Appellant to represent himself.
Farretta v. California, 422 U.S. 806 (1975).
At the jury trial in 2014, a detective with the Jacksonville Sherriff's Office involved in a controlled drug buy with Appellant, testified that he could tell the substance was marijuana from the "hundreds of marijuana purchases" he made as a narcotics detective. On cross-examination, the detective admitted that no chemical tests were run on the collected substance and that he just "assumed" it was marijuana. On redirect, the detective clarified that he assumed it was marijuana based on his training and experience, and that he had been trained on the difference between marijuana and a synthetic called K2.
Another detective testified that he searched Appellant and found five baggies of marijuana inside a clear plastic bag in Appellant's pocket. The detective testified he gave the narcotics to a police sergeant with the understanding that the drugs would be taken to the evidence room. He said he knew, based on his training and experience, that the green leafy substance in the baggies was marijuana, not K2. Another police witness testified that a bag containing seven baggies of marijuana was placed into evidence on the day of Appellant's arrest, along with cocaine and drug paraphernalia. He was unable on the stand, however, to distinguish which of the seven baggies came from the controlled buy, and which came from the search of Appellant's person.
A detective testified that he interviewed Appellant after the arrest, and an audiotape of that interview was played for the jury. On the recording, Appellant stated he was there because he had a one-year-old child and was trying to make money for rent. He admitted to the detective that it was his cocaine and marijuana. The detective said that after the recording was shut off, Appellant told him he was trying to support his children.
When the trial court denied defense counsel's motion for judgment of acquittal, Appellant started verbally berating the judge and eventually had to be removed from the courtroom. Appellant returned to the courtroom calmer, was sworn in, and stated that he did not want to testify.
Appellant was found guilty as charged on all counts. At a Nelson hearing, the trial court listened to Appellant explain his conflicts with defense counsel and found that defense counsel had not provided ineffective assistance. Appellant was sentenced to ten years in prison as a habitual felony offender on Count One, five years in prison on Count Two, and time served on Count Three, with all sentences imposed concurrently. This Court per curiam affirmed the final judgment. Austin v. State, 177 So. 3d 252 (Fla. 1st DCA 2015).
Nelson v. State, 274 So. 2d 256 (Fla 4th DCA 1973). --------
In 2017, Appellant filed a timely rule 3.850 postconviction motion, alleging eight grounds of ineffective assistance of counsel. The trial court summarily denied postconviction relief. Appellant appealed, arguing that the trial court erred in summarily denying Grounds One, Six, and Seven without affording an opportunity to amend, and that Grounds Three and Four warranted an evidentiary hearing. Because Appellant does not challenge the trial court's ruling on Grounds Two, Five, and Eight, we need not address the merits of those claims. See, e.g., Day v. State, 96 So. 3d 1090 (Fla. 4th DCA 2012) (only addressing postconviction grounds challenged on appeal).
Analysis
To uphold a trial court's summary denial of a Rule 3.850 motion, the claim must either be facially insufficient or conclusively refuted by the record. Johnson v. State, 936 So. 2d 1196, 1197-98 (Fla. 1st DCA 2006). To prove ineffective assistance of counsel, an appellant must show that: 1) the specific acts or omissions of counsel fell below a standard of reasonableness under prevailing professional norms; and 2) the appellant's case was prejudiced by these acts or omissions such that the outcome of the case would have been different. Strickland v. Washington, 466 U.S. 668, 692 (1984). Counsel cannot be ineffective for failing to make a meritless objection or failing to file a motion that would properly have been denied. See Willacy v. State, 967 So. 2d 131, 140 (Fla. 2007); Branch v. State, 952 So. 2d 470, 476 (Fla. 2006). Ground One - Whether defense counsel was ineffective for failing to challenge trial evidence that did not match police reports.
Despite Appellant's assertion otherwise, the evidence presented at trial was not inconsistent with the arrest report or the property-storage card. Detectives testified that the controlled drug buy was for two baggies of marijuana, and that a search of Appellant's person conducted after the arrest produced five more baggies. Although the arrest report listed the two baggies and the five baggies as separate items, all seven baggies were apparently placed into a larger bag (at trial the witnesses could not discern which baggies were purchased in the drug buy and which were found in Appellant's pocket). The property storage card showed a single package containing marijuana weighing a total of 6.80 grams, suggesting the baggies were put into one larger bag. Without any inconsistency, there was no probability of evidence tampering and thus, any objection would properly have been overruled. Appellant's claim is therefore meritless. See Willacy, 967 So. 2d at 140. Ground Three - Whether defense counsel was ineffective for failing to object to a detective's opinion testimony on marijuana.
An officer with narcotics experience can offer testimony as to the identity of marijuana based on smell and appearance, as marijuana is easily identified without chemical analysis. R.A.W. v. State, 92 So. 3d 312, 313 (Fla 1st DCA 2012); see also R.C. v. State, 192 So. 3d 606, 611 (Fla. 2d DCA 2016) (holding that the same rule applies under Daubert analysis after an amendment to section 90.702, Florida Statutes). Here, the detectives testified they had training and experience in identifying marijuana and K2, described the differences between the substances, and opined that the recovered substance was marijuana. Because such testimony was not inadmissible, any objection would properly have been overruled, and Appellant's argument is therefore meritless. Ground Four - Whether defense counsel was ineffective for failing to impeach a detective with prior inconsistent statements.
The detective testified at trial that Appellant told him he sold drugs to support his family after the recording was turned off, whereas the police report alleged this admission occurred during the recording. This claim is conclusively refuted by the record, for defense counsel did attempt to impeach the witness with this inconsistency, but the witness kept clarifying the discrepancy between the two statements. Because Appellant's claim - that defense counsel did not impeach the witness or bring the inconsistency to the jury's attention - is conclusively refuted by the record, the trial court did not err in summarily denying relief. See Johnson, 936 So. 2d at 1197-98. Ground Six - Whether defense counsel was ineffective for misadvising Appellant about his right to a full Nelson hearing.
Appellant's claim that he was never advised of his right to a Nelson hearing is conclusively refuted by the record, as Appellant had a Nelson hearing, where defense counsel was found to have rendered effective assistance of counsel. Therefore, the trial court did not err in summarily denying relief on Ground Six. Ground Seven - Whether defense counsel was ineffective for failing to challenge fingerprint comparisons relied upon for habitual felony offender sentencing.
The State filed a notice of intent to classify Appellant as a habitual felony offender, stating that Appellant had previously been convicted of sale of cocaine on March 15, 2001, and possession of cocaine on September 21, 2011. Appellant argues that the State initially filed the habitual felony offender notice stating its intent to rely on a 2008 conviction and use a 2014 fingerprint comparison to connect Appellant to the 2008 conviction. Appellant argues that, after this fingerprint comparison was conducted, the State amended its notice, replacing the 2008 conviction with the 2001 conviction; Appellant argues that no fingerprint or other evidence connects Appellant to the 2001 conviction.
This claim is conclusively refuted by the record, which shows that Appellant's fingerprints were rolled and compared to prints from his 2001 conviction, and that the State informed him of its intent to seek habitual offender classification should he proceed to trial. Because the State presented evidence linking the 2001 conviction to Appellant and notified him of its intent prior to comparing the prints, there was no basis for an objection and no surprise. With no basis for a nonfrivolous objection, there was no ineffective assistance of counsel and the court therefore did not err in denying relief. Willacy, 967 So. 2d at 140.
AFFIRMED. M.K. THOMAS, J., concurs; KELSEY, J., concurs in result.
Not final until disposition of any timely and authorized motion under Fla . R. App. P. 9.330 or 9.331. Anthony L. Austin, pro se, for Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee.