Jessie Floyd v. State of Florida , 257 So. 3d 1148 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-5007
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JESSIE FLOYD,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
___________________________
On appeal from the Circuit Court for Bay County.
Brantley S. Clark, Jr., Judge.
October 31, 2018
B.L. THOMAS, C.J.
Appellant, Jessie Floyd, appeals an order denying his
postconviction motion pursuant to Florida Rule of Criminal
Procedure 3.850. For the reasons discussed below, we affirm.
Appellant was convicted after a jury trial of armed robbery
with a deadly weapon (Count I) and aggravated assault with a
deadly weapon (Count II). The State filed a notice of intent to
seek prison releasee reoffender (PRR) designation, but withdrew
the notice before sentencing. Appellant was sentenced to twenty-
five years in prison on Count I and a concurrent term of
five years in prison on Count II. His convictions and sentences
were affirmed on appeal without opinion. See Floyd v. State, 184
So. 3d 520 (Fla. 1st DCA 2016) (Table).
In Appellant’s first ground, he argued that his attorney was
ineffective for failing to promptly advise him of the State’s notice
of intent to seek the PRR designation. He alleged that the notice
was sent to defense counsel on May 6, 2015, but counsel did not
open the e-mail until May 8, 2015. He asserted that she did not
inform him of the notice until jury selection on May 11, 2015. He
claimed that if his attorney had timely advised him of the PRR
notice, he would have had an opportunity to review the evidence
and determine that going to trial was not worth risking a PRR
sentence, and he would have accepted the State’s eight-year plea
offer. He alleged that the State would not have withdrawn the
offer, the trial court would have approved the offer, and the
sentence imposed would have been less than the twenty-five-year
prison sentence he ultimately received.
A claim of ineffective assistance of counsel is governed by
Strickland v. Washington, 466 U.S. 668, 690 (1984). To prove
ineffective assistance, an appellant must allege that (1) the
specific acts or omissions of counsel which fell below a standard of
reasonableness under prevailing professional norms, and (2) the
appellant was prejudiced by these acts or omissions such that the
outcome of the case would have been different. See id. at 690-692.
“If a plea bargain has been offered, a defendant has the right
to effective assistance of counsel in considering whether to accept
it.” Lafler v. Cooper, 566 U.S. 156, 168 (2012). In the context of
plea negotiations, the first prong of the Strickland analysis can
be satisfied by allegations that “counsel performed deficiently in
(1) advising a defendant to reject a plea offer, (2) misadvising the
defendant about the maximum penalty faced, or (3) failing to
convey a plea offer.” Sirota v. State, 95 So. 3d 313, 319 (Fla. 4th
DCA 2012), quashed on other grounds by State v. Sirota, 147
So. 3d 514 (Fla. 2014). To establish prejudice, a defendant must
allege that
(1) he or she would have accepted the offer had
counsel advised the defendant correctly, (2) the
prosecutor would not have withdrawn the offer, (3) the
court would have accepted the offer, and (4) the
conviction or sentence, or both, under the offer’s terms
would have been less severe than under the judgment
and sentence that in fact were imposed.
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Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013) (citing Missouri v.
Frye, 566 U.S. 134, 148 (2012)). “When determining whether
defense counsel’s misadvice concerning a plea prejudiced the
defendant, the trial court must consider the circumstances ‘at the
time of the offer and what would have been done with proper and
adequate advice.’” Parenti v. State, 225 So. 3d 949, 951 (Fla. 5th
DCA 2017) (quoting Alcorn, 121 So. 3d at 432).
Here, Appellant’s allegations of prejudice are facially
sufficient. However, with regard to the deficiency prong, he does
not allege that counsel failed to convey the eight-year plea offer,
neglected to advise him of the penalties he faced, or otherwise
misadvised him in connection with plea negotiations. Rather, he
claims that counsel did not advise him of the PRR notice
promptly enough to allow him to review the evidence and decide
whether to accept the plea offer. Even assuming arguendo such
allegations could establish a deficient performance on counsel’s
part, this claim is factually meritless.
At the beginning of jury selection on Monday, May 11, 2015,
defense counsel asked for permission to place some information
on the record. She explained that she had visited Appellant in
jail on the preceding Wednesday, but he terminated the visit
before she could convey all of the information she intended to
provide. She subsequently received the PRR notice on Friday,
May 8, 2015. She advised Appellant about the notice the
morning of jury selection. She wrote him a note explaining the
designation and how it would result in him serving 100% of the
maximum sentence, and noted that one of his charged offenses
was a first-degree felony punishable by life in prison. She also
explained that there was a great deal of evidence against him and
a strong likelihood that he would be convicted at trial. She
informed him that if he was convicted, the judge would have no
discretion to impose anything other than a life sentence.
In open court, defense counsel referred to the PRR
designation as a “game changer” and urged Appellant to accept
the eight-year plea offer to avoid spending the rest of his life in
prison. She indicated the offer had been open for “many, many
months,” and the State was still willing to allow him to accept it
that morning. She acknowledged that Appellant was upset with
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how she was handling the case, but reminded him that they had
assessed his trial prospects by reviewing the incriminating
surveillance video and the other evidence against him.
At that point, Appellant interrupted by saying, “My face was
not on the video.” Counsel responded that there was DNA
evidence and an identification by the clerk of the convenience
store. Appellant replied, “That’s weak.” Defense counsel
reiterated that if Appellant proceeded to trial, he would most
likely be convicted, and the judge would not have discretion to
consider what an appropriate sentence would be given the nature
of the offenses and Appellant’s history; instead, the PRR
designation would remove all discretion and he would be
sentenced to life in prison. She advised, “[S]low down and think
about what you are doing.” Appellant responded by asking the
judge to remove counsel from the case, because he did not trust
her. He complained that she was “scared to go to trial” and had
repeatedly tried to persuade him to take the eight-year plea offer.
The judge found no grounds to remove counsel from the case, so
Appellant elected to represent himself.
Under these circumstances, this claim is refuted by the
record. Defense counsel advised Appellant of the PRR notice on
the next business day after she received it. By that time, she had
already reviewed the incriminating evidence with him, but
Appellant believed that her reluctance to proceed to trial was
unreasonable. With the eight-year plea offer still available,
counsel fully explained the PRR designation and she
commendably warned Appellant in the direst possible terms that
he was likely to lose at trial and spend the rest of his life in
prison.
Despite this, Appellant rejected counsel’s advice, declined to
accept the eight-year plea offer, and proceeded to trial pro se.
Given this information, counsel did not perform deficiently. She
provided all of the information Appellant needed to consider the
eight-year plea offer while it was still available. Even after he
was fully advised of the pitfalls of his case and the severity of his
potential sentence, the record reflects that Appellant had no
intention of accepting the offer. Therefore, this claim was
properly denied.
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In Appellant’s second ground, he argued that counsel was
ineffective for failing to file a pretrial motion to suppress. This
ground contained two subclaims. In subclaim (a), he alleged that
a motion to suppress should have been filed on the basis that the
detective who stopped him after the robbery had no probable
cause to do so, given the victim’s flawed and vague description of
the suspect. In subclaim (b), Appellant asserted that the show-up
identification was impermissibly suggestive, because he was in a
police car and with a police officer at the time, which may have
given the victim an impression of his guilt. He claimed that
counsel should have also sought suppression of the voice
identification on this basis. In his motion for rehearing after his
amended motion was denied, he explained for the first time that
counsel should have sought suppression of the evidence seized
from his person—a knife, gloves, cigarettes, money, and a black
plastic bag.
Insofar as Appellant argued in subclaim (a) that a motion to
suppress should have been filed based upon the invalidity of his
detention by the detective, this claim is facially insufficient. A
defendant cannot show that counsel provided ineffective
assistance by failing to file a motion to suppress if the motion
would have been meritless. Johnston v. State, 63 So. 3d 730, 740
(Fla. 2011). Here, Appellant failed to provide any factual
allegations about his encounter with the detective that would
have supported a motion to suppress. Furthermore, he
improperly identified the evidence that would have been subject
to suppression for the first time in his motion for rehearing. See
Fla. R. Crim. P. 3.850(j) (“A motion for rehearing must be based
on a good faith belief that the court has overlooked a previously
argued issue of fact or law or an argument based on a legal
precedent or statute not available prior to the court’s ruling.”
(emphasis added)). As this aspect of his claim remained facially
insufficient after an opportunity to amend, it was properly denied
with prejudice. See Fla. R. Crim. P. 3.850(f)(2) (providing that
where a defendant is given an opportunity to amend and the
amended motion remains insufficient, the trial court may provide
another opportunity to amend or summarily deny the motion
with prejudice).
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This Court’s records reflect that any further attempts to
amend his motion would have proven futile. The record in
Appellant’s direct appeal reflects that he was detained less than
.4 miles from the location of the robbery within 9 minutes of the
be-on-the-lookout (BOLO) alert being issued. * The detective who
detained Appellant testified that Appellant matched the suspect’s
description based upon his age, build, and his clothing, minus an
“outer sweater.” The detective made contact and asked Appellant
questions. Appellant’s answers and demeanor were evasive. He
was then briefly detained while the victim was brought to the
scene to make an identification. The victim identified Appellant
based upon his clothing, his height and build, and his voice. It
was only at this point that Appellant was arrested and his
backpack was searched.
Under these circumstances, any motion to suppress
challenging the legality of his detention would have been denied,
as the detective had articulable reasonable suspicion to stop
Appellant, and it was permissible to detain him long enough to
bring the victim to identify him. See State v. Leach, 170 So. 3d
56, 60-62 (Fla. 2d DCA 2015). After the victim identified him,
probable cause existed to support Appellant’s arrest and a search
incident to arrest. See Jackson v. State, 241 So. 3d 914, 917 (Fla.
1st DCA 2018).
With regard to Appellant’s argument in subclaim (b) that
counsel should have filed a motion to suppress the show-up
identification, he did not provide supporting factual allegations
regarding the circumstances of the identification. Thus, this
aspect of his claim was also subject to denial with prejudice
because it remained facially insufficient after an opportunity to
amend. Regardless, it is also meritless.
* An appellate court may take judicial notice of its own
records as well as those from any other court. See Jackson v.
State, 127 So. 3d 706, 706 (Fla. 4th DCA 2013) (taking judicial
notice of the record in the defendant’s previous postconviction
appeal in affirming the denial of a subsequent postconviction
motion); Pace v. State, 826 So. 2d 996, 997 (Fla. 3d DCA 2001)
(taking judicial notice of the file in the appellant’s direct appeal
in order to resolve a postconviction appeal).
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For an out-of-court identification to be suppressed, it must be
shown that (1) the police used an unnecessarily suggestive
procedure, and (2) the suggestive procedure gave rise to a
substantial likelihood of irreparable misidentification. See Fisher
v. State, 924 So. 2d 914, 917 (Fla. 5th DCA 2006). “[A] show-up is
inherently suggestive because a witness is presented with only
one suspect for identification. However, a show-up is not invalid
if it does not give rise to a substantial likelihood of irreparable
misidentification given the totality of the circumstances.” Perez
v. State, 648 So. 2d 715, 719 (Fla. 1995) (internal citations
omitted). In evaluating the likelihood of misidentification, the
trial court should consider (1) the witness’ opportunity to view
the suspect at the time of the offense, (2) the witness’ degree of
attention, (3) the accuracy of the witness’ previous description of
the suspect, (4) the witness’ level of certainty, and (5) the length
of time between the offense and the identification. Neil v.
Biggers, 409 U.S. 188, 199 (1972).
As discussed above, the show-up identification in this case
occurred within minutes of the robbery, at which time the victim
identified Appellant by his height, build, clothing, and voice.
Furthermore, the transcript of the 911 recording played during
trial reflects that not only did the victim interact with Appellant
during the robbery, she also believed that he had been in the
store earlier that day and was a regular customer. She
recognized his voice and knew which direction he usually came
from when he visited the store. She described Appellant as an
African-American man wearing blue jeans, a gray bandana, and a
gray hoodie. Aside from Appellant’s assertion in his motion that
his hoodie was actually brown, the victim’s description matches
Appellant’s description of what he was wearing that night. Given
this information, even if defense counsel had filed a motion to
suppress the show-up identification, any such motion would have
been denied. Therefore, this aspect of his claim was properly
denied.
In Appellant’s third ground, he argued that the trial court
erred in failing to permit him to review deposition transcripts
before representing himself at trial. In his fourth ground, he
asserted that the trial court abused its discretion by ruling that
he could not impeach his own witnesses. These claims are not
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cognizable pursuant to rule 3.850, and were therefore properly
denied. See Fla. R. Crim. P. 3.850(c) (“This rule does not
authorize relief based upon grounds that could have or should
have been raised at trial and, if properly preserved, on direct
appeal of the judgment and sentence.”); Johnson v. State, 985
So. 2d 1215, 1215 (Fla. 1st DCA 2008) (identifying prosecutorial
misconduct, insufficiency of the evidence, and trial court error as
issues that should have been raised on direct appeal and are not
cognizable in a collateral postconviction motion).
In Appellant’s fifth ground, he claimed that his attorney was
ineffective for failing to make deposition transcripts available to
him so that he could assess the strengths and weaknesses of his
case. He alleged that he requested that his attorney provide him
with the details of the victim’s deposition testimony, and
subsequently asked her for deposition transcripts. He asserted
that counsel told him that she did not order deposition
transcripts because she did not need them to prepare for trial.
He argued that if he had known what the victim said at
depositions prior to trial, he would have had more evidence to use
to impeach her, in addition to the conflicting statements in her
911 call and her sworn statement to police. He also claimed that
if he had access to transcripts, he might have determined that
the State’s evidence was overwhelming and accepted the eight-
year plea offer.
The record reflects that Appellant chose to represent himself
on the day of jury selection. The judge advised him that making
that decision at that late stage would not entitle him to seek a
continuance. The judge cautioned Appellant that he would have
to pick a jury that day and go to trial in two days. Appellant
asked defense counsel about obtaining deposition transcripts, and
counsel responded that she did not seek to have the depositions
transcribed, because she did not deem transcripts necessary for
trial. Appellant asked to have the depositions transcribed, and
the judge reiterated that counsel had deemed the transcripts
unnecessary for her trial preparation and that the trial would not
be postponed based upon Appellant’s decision to represent
himself on the eve of trial.
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On the day of trial, Appellant advised the judge that he
would not be able to represent himself to the fullest of his
abilities without deposition transcripts. The judge repeated his
determination that counsel had not ordered them and no
continuances would be granted to allow Appellant to obtain them.
Under these circumstances, it appears that defense counsel had
determined that she did not require the deposition transcripts to
prepare for trial. She cannot now be deemed ineffective for failing
to anticipate that Appellant would elect to represent himself on
the eve of trial and would require the transcripts to prepare.
Furthermore, Appellant did not properly allege prejudice.
He does not assert pursuant to Strickland that the outcome of the
trial would have been different but for counsel’s failure to obtain
the deposition transcripts. Nor does he properly allege prejudice
in connection with the eight-year plea offer under Alcorn.
Instead, he made contradictory claims that the transcripts may
have assisted him in impeaching the victim’s already flawed
testimony, or the transcripts may have shown him that the
evidence was overwhelming and convinced him to accept a plea
deal. Thus, this ground was subject to denial, because it
remained facially insufficient after an opportunity to amend.
Additionally, his allegations are too speculative to support an
entitlement to postconviction relief. See Connor v. State, 979
So. 2d 852, 863 (Fla. 2007) (“Relief on ineffective assistance of
counsel claims must be based on more than speculation and
conjecture.”).
In Appellant’s sixth and final ground, he argued that the
cumulative effect of the trial court’s errors and his attorney’s
ineffective assistance deprived him of a fair trial. However,
because all of Appellant’s individual claims are subject to denial
for the reasons discussed above, his claim of cumulative error
must also fail. See Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003).
AFFIRMED.
KELSEY and WINOKUR, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Jessie Floyd, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Virginia C. Harris,
Assistant Attorney General, Tallahassee, for Appellee.
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