Theophilus Bessellieu v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-4699
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THEOPHILUS BESSELLIEU,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Duval County.
Steven B. Whittington, Judge.
September 14, 2018
B.L. THOMAS, C.J.
Appellant was tried and convicted of attempted murder of a
law enforcement officer and aggravated assault of another law
enforcement officer. Appellant and three friends were sitting in a
parked car, with Appellant in the front passenger seat, when the
police officer approached the driver for identification. The officer
testified that Appellant pointed the gun directly in his face, no
more than 18 inches away. It was only due to the officer’s
extremely fast defensive maneuver that he wasn’t actually killed;
he quickly ducked and turned away, but not fast enough to avoid
the gas propellant from the gun’s discharge, temporarily blinding
him in one eye. The officer immediately returned fire into the
vehicle. Appellant and the driver ran away, and went to the
same residence soon after the shooting. The driver turned
himself in later that night.
The driver of the car testified that, before the shooting,
Appellant said that if the police ever tried to “front him [I] will
shoot him in the face.” He also testified that he saw Appellant
running away with the gun. One passenger identified Appellant
as the shooter. The other passenger testified that, immediately
after seeing a gun fire from within the car, he saw Appellant run
away from the car with a gun in his hand.
Appellant was also convicted of aggravated assault of
another law enforcement officer, based on Appellant pointing a
gun at the pursuing officer. That officer testified that he arrived
at the scene to see the officer who was the victim of the
attempted murder, and another officer, with their guns drawn
and pointed at an “SUV type vehicle.” His attention was later
drawn to a person who was not wearing a shirt, was breathing
heavily, sweating profusely, and had blood on his face. This
officer identified the person as Appellant.
After two commands to stop and show his hands, Appellant
turned and ran, and the officer chased him. Appellant suddenly
turned around and pointed what appeared to be a black firearm
at the officer, who then fired at Appellant. The officer was in fear
for his life. He “got a good look” at Appellant, because he was
only ten feet from him when he saw him.
Officer Charles Wilkie testified that he was dispatched to the
4800 block of Dundee Avenue to assist in securing the perimeter
of the incident. When he was about 20 yards away, he saw
someone crossing the intersection. This person had no shirt on,
which was strange, because it was cold outside. This person also
appeared to be holding something in his hands or possibly
holding his pants. Officer Wilkie lit up the area with his
spotlight, and he then saw the other officer chasing the person he
had spotted. That officer fired at the person he was pursuing.
After the firing stopped, Officer Wilkie tracked Appellant with
his police service dog. The dog led Officer Wilkie to a driveway,
where he saw a Ford Bronco, with a pair of shoes and legs visible
from underneath it. Officer Wilkie gave the dog a silent
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command “to engage,” and the dog “proceeded underneath the
Bronco and engaged the suspect.” Shortly thereafter, Appellant
emerged.
A crime scene detective from the Jacksonville Sheriff's Office
testified that he found three .45-caliber shell casings in the SUV:
one on the driver’s-side floorboard; another in the center console
area; and another on the front passenger-side floorboard. He
testified that he also found a live round outside the SUV on the
driver’s side and explained that a live round could be ejected if
there was malfunction or if the slide on the gun was pulled. He
further testified that a .45-caliber round was not standard issue
from the Jacksonville Sheriff's Office. A firearm analyst testified
that, in his expert opinion, the shell casings found at the first
scene were fired from the gun that was recovered.
The defense called a firearm and tool-mark examiner for the
Florida Department of Law Enforcement, who testified that the
State did not find any gunshot residue on Appellant's hands and
that .45-caliber ammunition would contain the necessary
elements for gunshot residue analysis. But on cross-examination,
he testified that a person could remove gunshot residue by
common activity, such as rubbing one's hands together or on
clothing or by “sweating profusely.”
Appellant was found guilty of attempted murder and
aggravated assault of a law enforcement officer. He was
sentenced to life imprisonment for attempted murder and 15
years’ imprisonment for aggravated assault.
In his direct appeal, Appellant argued that the trial court
reversibly erred in failing to grant a mistrial when the prosecutor
asserted in closing argument that Appellant stated he would
shoot any police officer before going “back” to jail. During the
trial, the State had agreed to redact the word “back,” and the
evidence did not include this version of Appellant’s statement
against interest. This Court affirmed Appellant’s direct appeal
without opinion. Bessellieu v. State, 37 So. 3d 850 (Fla. 1st DCA
2010) (table).
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Appellant then filed a petition for habeas corpus, asserting
fundamental error occurred in the jury instructions regarding a
lesser-included offense and that appellate counsel provided
ineffective assistance in failing to raise this argument. This court
denied the petition on the merits without opinion. Bessellieu v.
State, 57 So. 3d 873 (Fla. 1st DCA 2011).
Appellant then filed a motion for postconviction relief raising
four grounds. The trial court denied all claims without an
evidentiary hearing. This Court affirmed the lower court’s order
denying relief on three of those claims, but reversed and
remanded for the trial court to attach records to conclusively
refute Appellant’s claim that the State failed to sign the criminal
information, and that defense counsel was ineffective for failing
to object to this purported error. Bessellieu v. State, 219 So. 3d
994 (Fla. 1st DCA 2017). After remand, the circuit court attached
several informations filed in Appellant’s case.
We hold that Appellant abused the judicial process by
challenging the allegedly defective information through a claim of
ineffective assistance of counsel. See Arbelaez v. State, 775 So. 2d
909, 915 (Fla. 2000) (“Arbelaez may not relitigate procedurally
barred claims by couching them in terms of ineffective assistance
of counsel.”). Had defense counsel objected to the criminal
information being filed without the State’s signature, the State
could have merely signed the information; thus, there is no
possibility Appellant was prejudiced. See Strickland v.
Washington, 466 U.S. 668, 687-88, 691-92 (1984) (holding that to
show ineffective assistance of counsel, a defendant must
demonstrate a reasonable probability that the outcome would
have been different had counsel not acted deficiently). Further,
such challenges to a defective information must be raised on
direct appeal, not in a rule 3.850 motion. See Williams v. State,
642 So. 2d 67 (Fla. 1st DCA 1994); cf. Logan v. State, 1 So. 3d
1253, 1255 (Fla. 4th DCA 2009) (holding that a prosecutor’s
alleged failure to obtain sworn testimony from witness cannot be
raised in motion for postconviction relief).
Appellant did not raise this deficiency before his trial; thus,
any error which may have occurred when the State failed to sign
the information was waived. See Hamilton v. State, 106 So. 3d
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996 (Fla. 1st DCA 2013) (“[A] defect in an information is waived if
no objection is timely made so long as the information does not
wholly fail to state a crime.”); Colson v. State, 717 So. 2d 554, 555
(Fla. 4th DCA 1998).
We affirm the trial court’s order denying all relief.
AFFIRMED.
LEWIS and MAKAR, 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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Theophilus Bessellieu, Appellant, pro se.
Pamela Jo Bondi, Attorney General, Bryan Jordan, Assistant
Attorney General, Tallahassee, for Appellee.
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