Samuel Connely v. State , 2016 Fla. App. LEXIS 18443 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
SAMUEL CONNELY,
Appellant,
v. Case No. 5D16-2217
STATE OF FLORIDA,
Appellee.
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Opinion filed December 16, 2016
3.850 Appeal from the Circuit Court
for Orange County,
Robert J. Egan, Judge.
Samuel Connely, Malone, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Robin A. Compton, Assistant
Attorney General, Daytona Beach, for Appellee.
EDWARDS, J.
Appellant, Samuel Connely, appeals the postconviction court’s order denying his
motion for relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant
alleged eight grounds in his motion—each asserting ineffective assistance of counsel.
The postconviction court summarily denied all of Appellant’s claims. Grounds 2, 4, 5, 6,
and 7 are conclusively refuted by the portions of the record that the postconviction court
attached to its order. Appellant did not address Ground 8 in his brief; therefore, it is
deemed abandoned. See Ward v. State, 19 So. 3d 1060, 1060 (Fla. 5th DCA 2009).
We reverse and remand for further proceedings as to Ground 1, which asserted
that counsel was ineffective for failing to strike a juror for cause who purportedly stated
that he or she could not be fair and impartial due to a personal moral opposition to gun
violence. The postconviction court stated that “the record of the voir dire proceedings . . .
demonstrates that none of the potential jurors expressed such sentiment”; however, none
of the attached records pertain to jury selection, and the index indicates that jury selection
was not transcribed.
We also reverse and remand for further proceedings as to Ground 3. In Ground 3,
Appellant asserted that counsel was ineffective for failing to object to the trial court’s
answer to a jury question concerning witness testimony and by failing to request that the
trial court inform the jury that the court reporter could read back witness testimony. The
postconviction court correctly noted that the Florida Supreme Court’s decision in Hazuri v.
State, 91 So. 3d 836, 845 (Fla. 2012), which held that the jury must be instructed that it
can request read back of testimony, was issued after Appellant’s trial. The postconviction
court also cited to our decision in Frasilus v. State, 46 So. 3d 1028, 1030-31 (Fla. 5th
DCA 2010), in which we acknowledged, prior to Hazuri, that there was disagreement
among some of the district courts of appeal as to when a trial court must inform the jury
that certain testimony could be read back to them. We noted that Frasilus differed from
the conflicting cases because the jury in Frasilus did not request either trial transcripts or
a read-back, but instead asked a factual question of when a possibly relevant picture was
taken. Frasilus, 46 So. 3d at 1030-31.
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In an earlier case, Roper v. State, 608 So. 2d 533, 535-36 (Fla. 5th DCA 1992),
we held that the trial court erred by not apprising the jury that, while transcripts were not
available, the jury could have testimony read back to them on request, subject to the trial
court’s discretion on whether to grant such a request. There may have been one or more
strategic reasons in this case for defense counsel’s decision not to request a read-back.
However, whether the failure to request a read-back of the testimony constituted
ineffective assistance of counsel was not conclusively refuted by the records attached in
this case.
Accordingly, we affirm the order below as to Grounds 2, 4, 5, 6, and 7; find that
Ground 8 was abandoned; and remand as to Grounds 1 and 3 for the postconviction court
to either attach portions of the record that conclusively refute those grounds or to conduct
an evidentiary hearing.
AFFIRMED in part; REVERSED in part; and REMANDED.
PALMER and TORPY, JJ., concur.
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