Israel J. Wilson v. State of Florida , 271 So. 3d 1237 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-1774
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ISRAEL J. WILSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Duval County.
Tatiana Salvador, Judge.
May 16, 2019
PER CURIAM.
Israel Wilson (“Wilson”) appeals the denial of his motion for
post-conviction relief pursuant to Florida Rule of Criminal
Procedure 3.850. He claims ineffective assistance of counsel in
failing to file a motion to suppress witness identification, to object
to improper closing arguments, and to request a jury instruction
that he was proceeding to trial with the aid of medication to treat
his mental disorders. Because Wilson’s claims are meritless, we
affirm.
In July 2010, Wilson was convicted of burglary with an
assault or battery, attempted robbery, robbery, and fraudulent use
of a credit card. The trial court sentenced him to concurrent terms
of life in prison for the burglary offense, ten years in prison each
for the attempted robbery and the fraudulent credit card use
offenses, and thirty years in prison for the robbery offense. He was
designated a habitual felony offender and a prison releasee
reoffender. His judgment and sentence were per curiam affirmed
on December 8, 2011. Wilson v. State, 75 So. 3d 728 (Fla. 1st DCA
2011) (table decision).
To succeed on claims of ineffective assistance of counsel,
Wilson must show that his trial counsel’s performance was
deficient and that such deficient performance prejudiced the
defense so as to deprive him of a fair trial. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). To show deficiency, he must
demonstrate that counsel’s representation fell below an objective
standard of reasonableness based on professional norms. See
Odegaard v. State, 137 So. 3d 505, 507 (Fla. 2d DCA 2014). To
satisfy the prejudice prong, Wilson must show that, but for the
error, there was a reasonable probability the outcome would have
been different. Jones v. State, 998 So. 2d 573, 584 (Fla. 2008).
Regarding ground one, failure to file a motion to suppress out-
of-court and in-court identifications, the trial court attached
portions of the record to show that this claim was without merit.
Counsel cannot be deemed ineffective if the motion to suppress
would have been meritless. See Johnston v. State, 63 So. 3d 730,
740 (Fla. 2011).
On ground two, failure to object to improper closing
arguments, in order to prevail on an ineffective assistance of
counsel claim for failing to object to comments made during closing
arguments, Wilson must show that the comments were
objectionable and that there was no tactical reason for failing to
object. See Wickham v. State, 124 So. 3d 841, 860 (Fla. 2013);
Stephens v. State, 975 So. 2d 405, 420 (Fla. 2007). He must also
show that the comments were so prejudicial that they deprived
him of a fair trial. Stephens, 975 So. 2d at 420. Wilson fails to
demonstrate any deficiency of counsel in failing to object to the
above comments by the State. A review of the closing arguments
shows that the comments were made in rebuttal to defense counsel
on the same subject; therefore, they were an “invited response” and
not improper. See Walls v. State, 926 So. 2d 1156, 1166 (Fla.
2006).
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Finally, in his third ground, failure to request a jury
instruction to explain his use of psychotropic medication, the trial
court properly dismissed this claim as untimely. Wilson’s
amended motion for post-conviction relief raising this claim was
not filed within two years of this Court’s mandate. As he raised a
new claim rather than simply providing additional allegations to
his original two claims, the time requirements in Rule 3.850(b)
applied to the amended motion. See Lanier v. State, 826 So. 2d
460, 461-62 (Fla. 1st DCA 2002).
AFFIRMED.
LEWIS, WINSOR, and M.K. THOMAS, 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.
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Israel J. Wilson, pro se, Appellant.
Ashley Moody, Attorney General, Tallahassee, for Appellee.
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