Opinion
No. 1D19-3263
10-23-2020
Seth SUTHERLAND, Appellant, v. STATE of Florida, Appellee.
Caleb D. Rowland of Rowland Law, LLC, Jacksonville, for Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee.
Caleb D. Rowland of Rowland Law, LLC, Jacksonville, for Appellant.
Ashley Moody, Attorney General, Tallahassee, for Appellee.
B.L. Thomas, J.
Appellant challenges the trial court's denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief, which alleged multiple claims of ineffective assistance of counsel. On May 14, 2010, a jury convicted Appellant of two counts of sexual battery on a child less than twelve years of age, occurring between August 1, 2005 and November 21, 2005 (count I), and between November 22, 2005 and August 1, 2006 (count II). Appellant was sentenced to 100.5 months in prison on the first count and life in prison without the possibility of parole on the second count.
Appellant filed his initial motion for postconviction relief on November 1, 2012, raising eight claims of ineffective assistance of counsel under rule 3.850. On January 11, 2017, the trial court struck Appellant's fifth ground as facially insufficient and gave Appellant sixty days to amend this ground, pursuant to rule 3.850(f)(2). See Spera v. State , 971 So. 2d 754, 758–59 (Fla. 2007). Appellant sought an extension of time, which was granted, and gave Appellant until April 20, 2017, to file his amended motion. Appellant sought a second extension on April 24, 2017, before filing the amended motion on April 26, 2017. The trial court summarily denied the motion on July 10, 2017. On September 4, 2019, this Court granted a belated appeal on this matter.
On appeal, Appellant argues that he relies on the arguments made in his postconviction motion for grounds three, four, six, and seven. However, this is insufficient to maintain a claim on appeal, and as Appellant does not fully address them, this Court finds that Appellant has abandoned his third, fourth, sixth, and seventh claims. See Watson v. State , 975 So. 2d 572, 573 (Fla. 1st DCA 2008) ("[W]hen a defendant submits a brief in an appeal from a summary denial of a postconviction motion, this Court may review only those arguments raised and fully addressed in the brief."). As for the remaining grounds, Appellant raises specific arguments sufficient to maintain a claim on appeal, and we address these claims in turn.
To prove ineffective assistance of counsel, a defendant must allege (1) the specific acts or omissions of counsel that fell below a standard of reasonableness under prevailing professional norms and (2) the defendant'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, 690–92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The deficient performance prong requires "showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. 2052. The prejudice prong requires the defendant demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.’ " Harrington v. Richter , 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Strickland , 466 U.S. at 687, 104 S.Ct. 2052 ).
As to Appellant's first ground, he argued in his postconviction motion that his trial counsel failed to pursue and obtain a definitive ruling on a motion for a statement of particulars. He alleged he directed his defense counsel to pursue a motion for a statement of particulars to narrow the year-long timeframe of his alleged crimes because he did not have access to the alleged victim during much of the stated timeframe. He alleged that the failure to obtain this ruling prejudiced him because the large timeframe made it difficult to produce evidence. The trial court denied this claim, finding that trial counsel had filed such a motion and was not ineffective as a result.
On appeal, Appellant argues the trial court erred in denying this claim because while trial counsel filed a motion for a statement of particulars, the trial court did not address his claim that counsel failed to pursue and gain a definitive ruling on the motion. Appellant argues this was critically important with regards to his second offense because section 794.011(2)(a), Florida Statutes (2010), required the State to prove that he was over the age of eighteen when the crime occurred. Although the record does not indicate that a definitive ruling on the motion was obtained, Appellant is still required to prove prejudice under the Strickland standard and cannot base his claim for relief on speculation. See 466 U.S. at 693, 104 S.Ct. 2052. A defendant has a right to a statement of particulars only when the charging document does not give him adequate notice of a charge. See Smith v. State , 93 Fla. 238, 112 So. 70 (1927) ; see also Winslow v. State , 45 So. 2d 339, 340 (Fla. 1949). However, "[a] defendant is not entitled to a [statement] of particulars specifying the exact day upon which a crime occurred if the exact date is not known." Jenkins v. State , 444 So. 2d 1108, 1108 (Fla. 1st DCA 1984) (citing State v. McGregor , 409 So. 2d 504 (Fla. 4th DCA 1982) ). In the instant matter, the charging document clearly outlined the charges against Appellant. Additionally, any attempt to pursue a ruling on the motion for a statement of particulars would have resulted in a denial because the record indicates that neither party could specify the exact date on which the crimes occurred. Therefore, Appellant did not have a right to a statement of particulars, and Appellant cannot demonstrate that he was prejudiced by the lack of ruling on this motion.
In his second ground for postconviction relief, Appellant claimed that trial counsel failed to seek an alibi defense despite being directed to do so. Appellant argues that if counsel had acted as directed and adhered to an alibi defense, he would have been able to establish via work records, bank records, a band schedule, and eyewitness accounts, that he was not in a position to have committed the alleged crimes. Appellant specifically noted that for eight of the twelve months listed in the charging information, he did not reside at the home where the victim lived. Instead, Appellant alleged that trial counsel told him that he did not have a right to choose the type of defense that was presented.
An appellant must prove that he was prejudiced by the failure of trial counsel to pursue that defense and that the defense itself would have been viable. See Overton v. State , 976 So. 2d 536, 556–57 (Fla. 2007) (holding that there was no prejudice on an appellant's claim that trial counsel was ineffective for failing to present a work alibi defense when the appellant failed to show the defense could have been viable). In the present case, Appellant argues on appeal that the presentation of an alibi defense and the fact that he did not reside with the victim for the majority of the timeframe could have caused the jury to question the accuracy of the claims of the victim and the witnesses. We are not persuaded. The record indicates that Appellant lived in the residence for four months out of the twelve-month timeframe covered by the indictment. As noted above in ground one, the victim could not narrow the timeframe in which the incidents occurred. Thus, as in Overton , unless Appellant could account for his whereabouts at all times during those four months, any alibi defense would have failed because he would still have had the opportunity to commit the criminal acts. See id. Accordingly, Appellant cannot prove prejudice, and his claim fails the second prong of Strickland . See 466 U.S. at 690–92, 104 S.Ct. 2052.
In his fifth ground, Appellant claimed that his trial counsel failed to move for a mistrial for potential witness tampering. Specifically, during the victim's testimony at trial, the court's bailiff saw the boyfriend of the victim's mother nodding, winking, and making other "outward responses" towards the victim while the victim was on the stand. Appellant argued that he was materially prejudiced because witness credibility was the deciding factor of the trial and counsel was obligated to move for a mistrial, or at the very least, ask the victim about the outward responses.
The trial court denied this amended claim as untimely, finding that it had granted Appellant an extension of time to file the amended motion by April 20, 2017. Although Appellant sought a second extension on April 24, 2017, the trial court never granted this motion, and Appellant was not entitled to the benefit of the mailbox rule because the motion was electronically filed by postconviction counsel on April 26, 2017.
Appellant argues on appeal that the trial court erred because the court's summary denial failed to take into consideration that the second motion for extension of time had been filed, that postconviction counsel had forwarded a request to the court's judicial assistant, and that postconviction counsel had received a response that " ‘[y]es, please provide an Order in Word format.’ " Thus, Appellant argues he was under the impression that the trial court had decided to grant the additional time.
This argument is without merit. The conversation between Appellant's postconviction counsel and the trial court's judicial assistant is not part of this record, and this Court cannot consider it. "When a party [on appeal] includes in an appendix material or matters outside the record, or refers to such material or matters in its brief, it is proper for the court to strike the same." Altchiler v. State , 442 So. 2d 349, 350 (Fla. 1st DCA 1983). While Appellant's document was given to prison officials for mailing on March 22, 2017, the "mailbox rule" applies to incarcerated pro se litigants. See Joseph v. State , 157 So. 3d 546, 547–48 (Fla. 1st DCA 2015). Appellant is represented by counsel in the instant matter. Therefore, the mailbox rule is inapplicable, Appellant's amendment was untimely, and the trial court was allowed to rule on the facially insufficient initial pleading.
Furthermore, even if the amendment was timely filed, and the initial pleading was not insufficient, Appellant's claim would still be meritless. Where an appellant alleges counsel was ineffective for failing to move for a mistrial, the appellant must show that the motion for mistrial would have been granted to satisfy the prejudice prong of Strickland . See Allen v. State , 261 So. 3d 1255, 1277–78 (Fla. 2019). "A motion for mistrial should be granted only when the error is deemed so prejudicial that it vitiates the entire trial, depriving the defendant of a fair proceeding." Floyd v. State , 913 So. 2d 564, 576 (Fla. 2005). By Appellant's own admission, the cited record indicates that the jury was not aware of the actions of the "outward responses," and the trial court gave immediate instructions that this individual was to be stopped from having "reactions of any kind whatsoever to any answers and attempt to have any non-verbal communication with this witness." As a result, Appellant cannot demonstrate that a motion for mistrial would have been granted and, therefore, cannot show that he was prejudiced by trial counsel's decision not to move for a mistrial.
In Appellant's eighth ground, he argued that his trial counsel was ineffective for failing to object to the prosecutor's improper bolstering of the victim's testimony in closing arguments by telling the jury that the victim told the truth. He maintained that, while trial counsel objected to the prosecution's statements, the objection was not for improper bolstering.
On appeal, Appellant argues that the prosecutor's statements were objectionable. Specifically, he claims that witness credibility was essential to the State's case because his conviction was based solely on the victim's testimony and the testimony of the victim's mother. Thus, Appellant claims the prosecutor's comments during closing arguments were made to inflame the minds and passions of the jurors, elicit an "emotional verdict," and improperly shift the burden of proof.
Appellant's argument is without merit. To show entitlement to a new trial based on improper prosecutorial comments, such comments must:
either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.
Walls v. State , 926 So. 2d 1156, 1167 (Fla. 2006) (quoting Spencer v. State , 645 So. 2d 377, 383 (Fla. 1994) ).
The Florida Supreme Court has concluded that the trial court properly rejected a claim of ineffective assistance of counsel for failing to object to improper bolstering where the prosecutor's argument was based on the facts surrounding a witness's testimony that the witness should be believed. Miller v. State , 926 So. 2d 1243, 1255 (Fla. 2006) ("We find no error by the trial court in rejecting this claim and concluding that the prosecutor was arguing, based on the facts surrounding the witness's testimony, that the witness was worthy of belief."). In the instant matter, the prosecutor made statements based on the testimony of the victim and the victim's mother and argued that the victim told the truth. The prosecution's arguments were not improper under those circumstances. As such, trial counsel did not have reasonable grounds to object. See Hitchcock v. State , 991 So. 2d 337, 361 (Fla. 2008) ("Counsel cannot be deemed ineffective for failing to make a meritless objection."). Even if the prosecutor's statements were improper, Appellant cannot demonstrate that they fundamentally tainted the trial or were so inflammatory that it caused the jury to reach a more severe verdict than it otherwise would have. See Walls , 926 So. 2d at 1167.
In view of the above, we AFFIRM the trial court's ruling as to all of Appellant's claims.
Ray, C.J., concurs; Kelsey, J., concurs in result only.