Opinion
Case No. 5D19-1833
01-17-2020
David P. MORAN, Petitioner, v. STATE of Florida, Respondent.
David Moran, Lake City, pro se. Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Respondent.
David Moran, Lake City, pro se.
Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Respondent.
LAMBERT, J.
David P. Moran has filed a petition seeking habeas corpus relief under Florida Rule of Appellate Procedure 9.141(d) based upon the alleged ineffective assistance of his appellate counsel on direct appeal. We deny Moran's petition on the merits, but write to address certain claims that he raises.
Moran was convicted after jury trial of attempted first-degree murder of a law enforcement officer with a weapon and aggravated battery with a deadly weapon or causing great bodily harm on a law enforcement officer. He had previously pled nolo contendere to charges of aggravated fleeing or attempting to elude a law enforcement officer causing injury or damage, as well as simple battery. Moran was sentenced to serve life in prison on the conviction for attempted first-degree murder of a law enforcement officer with a weapon, to be served consecutively to lesser concurrent sentences imposed by the trial court on the remaining counts.
On direct appeal, Moran's court-appointed counsel filed an Anders brief. Counsel raised a singular issue of inquiry concerning whether the trial court erred in denying Moran's motion to suppress certain post- Miranda statements that he provided to law enforcement while he was hospitalized. Moran then filed a pro se brief raising as his sole issue that the prosecutor made improper statements during closing arguments that violated Moran's right to a fair trial. Moran's convictions and sentences were affirmed without opinion. Moran v. State , 278 So. 3d 687 (Fla. 5th DCA 2019).
Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The first two issues that Moran raises in the instant petition mirror those raised in the aforementioned briefs filed on direct appeal. Moran argues that his appellate counsel was ineffective for failing to argue trial court error in the denial of his motion to suppress his statements at the hospital. Secondly, he asserts that counsel should have challenged the court's denial of his motion for mistrial based upon the alleged improper comments by the prosecutor during closing. For Moran to be entitled to relief, he must first establish that these omissions of appellate counsel are of such a magnitude "as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance." See Suarez v. Dugger , 527 So. 2d 190, 192–93 (Fla. 1988). Second, Moran must also show that the deficiency in counsel's performance "compromised the appellate process to such a degree as to undermine confidence in the correctness of the result." See id.
We conclude that Moran is not entitled to relief on these first two issues because he cannot show either that appellate counsel's performance was deficient or the requisite prejudice resulting from counsel's performance. Moran's direct appeal was evaluated under the procedures emanating under Anders , which, among other things, requires an appellate court independently to "examine the record to the extent necessary to discover any errors apparent on the face of the record." State v. Causey , 503 So. 2d 321, 322 (Fla. 1987). Here, the first issue Moran raises was specifically identified by his appellate counsel in the Anders brief. Under these circumstances, Moran cannot establish that his counsel was ineffective for failing to argue that the trial court erred in denying the motion to suppress in a merits brief because
our Anders review assured that the issue was fully considered such that any deficiency in appellate counsel's performance did not prejudice [him], and certainly did not "compromise[ ] the appellate process to such a degree as to undermine confidence in the correctness of the result" of the appeal.
Towbridge v. State , 45 So. 3d 484, 487 (Fla. 1st DCA 2010). Stated differently, any error in the trial court's denial of the suppression motion was necessarily considered by this court on direct appeal, and we determined that no additional briefing was necessary because, on the face of the record, the claim lacked merit. See id. ; see also Rutherford v. Moore , 774 So. 2d 637, 643 (Fla. 2000) ("If a legal issue ‘would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel's performance ineffective." (quoting Williamson v. Dugger , 651 So. 2d 84, 86 (Fla. 1994) )).
A similar analysis applies to Moran's second issue. Because Moran argued in his pro se brief on direct appeal that the trial court erred in denying his motion for mistrial, this claimed error was also necessarily considered, evaluated, and rejected by this court such that we found it unnecessary to order additional briefing of this issue from appellate counsel. Thus, Moran has failed to demonstrate any measurable prejudice from appellate counsel's failure to raise this argument on direct appeal. See Morrison v. State , 764 So. 2d 649, 649 (Fla. 1st DCA 2000) (holding that a defendant cannot establish prejudice resulting from appellate counsel's failure to raise an issue where the issue was considered by the court in its review pursuant to Anders because it was raised in the defendant's pro se brief). Moran also argues that his appellate counsel was ineffective for failing to argue that his convictions of attempted first-degree murder of a law enforcement officer with a weapon and aggravated battery with a deadly weapon or causing great bodily harm on a law enforcement officer violated double jeopardy. This claim is meritless. See State v. Florida , 894 So. 2d 941, 949 (Fla. 2005) (holding that "the offenses of aggravated battery on a law enforcement officer and attempted second-degree murder with a firearm do not violate the constitutional ban on double jeopardy"), receded from on other grounds by Valdes v. State , 3 So. 3d 1067, 1077 (Fla. 2009) ; Schirmer v. State , 837 So. 2d 587, 588 (Fla. 5th DCA 2003) (holding that convictions of attempted second-degree murder with a weapon and aggravated battery with a deadly weapon or causing great bodily harm do not violate double jeopardy). Accordingly, Moran's appellate counsel was not ineffective for failing to raise what would have been a meritless issue on appeal. See Armstrong v. State , 862 So. 2d 705, 718 (Fla. 2003).
Moran's fourth claim of ineffective assistance of appellate counsel asserts that counsel failed to argue that the trial court erred in denying his motion for judgment of acquittal. Moran contends that, from the evidence, there existed a reasonable hypothesis of innocence that his actions that evening in driving his vehicle directly towards and striking the officer, while a second officer was shooting at him in an effort to get Moran to stop his car, evinces that his actual intent was to commit "suicide by cop," instead of attempting to murder the officer. Second, Moran argues that his appellate counsel was ineffective for not challenging the denial of his judgment of acquittal motion when the evidence at trial did not show that Moran had the intent to kill the officer.
We conclude that appellate counsel's failure to raise either argument on direct appeal did not rise to the level of ineffectiveness. As to the first aspect of this claim, Moran's trial counsel did not raise the argument of "suicide by cop" as a basis for a judgment of acquittal. Thus, the issue was unpreserved on direct appeal. "Appellate counsel cannot be deemed ineffective for failing to raise an unpreserved issue on appeal." Randolph v. State , 853 So. 2d 1051, 1066 (Fla. 2003) (citing Downs v. Moore , 801 So. 2d 906, 916 (Fla. 2001) ; Rutherford , 774 So. 2d at 643 ).
Second, Moran does not dispute that he drove his car directly towards where the officer was located and that he struck and injured the officer with his car. Moran's explanation is that he nevertheless did not intend to kill the officer. However, "[p]roof of an act does raise a presumption that it was knowingly and intentionally done." State v. Oxx , 417 So. 2d 287, 290–91 (Fla. 5th DCA 1982). Additionally, "[t]he law is clear that a trial court should rarely, if ever, grant a motion for judgment of acquittal on the issue of intent." Washington v. State , 737 So. 2d 1208, 1215–16 (Fla. 1st DCA 1999) (citing King v. State , 545 So. 2d 375, 378 (Fla. 4th DCA 1989) ). Moran's trial counsel did, in fact, move for a judgment of acquittal, arguing that the State failed to prove that he intended to murder the officer. The trial court correctly denied the motion for judgment of acquittal, properly leaving the issue of Moran's intent to be determined by the jury. Thus, Moran's appellate counsel was not ineffective for failing to argue a meritless issue.
Having carefully considered Moran's remaining claims, we conclude that they lack merit and, therefore, deny them without further discussion. Accordingly, Moran's petition for habeas corpus relief based on ineffectiveness of appellate counsel is denied on the merits.
PETITION DENIED.
WALLIS and GROSSHANS, JJ., concur.