Opinion
Case No. 2D19-1234
07-10-2020
Nathan C. FLOYD, Appellant, v. STATE of Florida, Appellee.
Nathan C. Floyd, pro se. Ashley Moody, Attorney General, Tallahassee, and Blain A. Goff, Assistant Attorney General, Tampa, for Appellee.
Nathan C. Floyd, pro se.
Ashley Moody, Attorney General, Tallahassee, and Blain A. Goff, Assistant Attorney General, Tampa, for Appellee.
BLACK, Judge.
Nathan Floyd appeals from the order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. A number of Floyd's claims were denied summarily and others were denied following an evidentiary hearing. On appeal, Floyd argues that the postconviction court's finding that trial counsel was not ineffective in his handling of the testimony regarding Floyd's criminal history is not supported by the evidence presented at the hearing. We agree; accordingly, we reverse the postconviction court's order and remand for a new trial.
Floyd was charged with sexual battery with a deadly weapon, a knife. His defense was that the victim in this case, B.M., had falsely accused him as an act of revenge after Floyd refused to pay her the agreed upon fee for sex and left her in a remote area of the county. Floyd was found guilty as charged, and he was sentenced to life in prison. Although this court affirmed his conviction, we reversed his sentence. Floyd v. State, 198 So. 3d 718 (Fla. 2d DCA 2016). On resentencing, the trial court imposed a twenty-seven-year prison sentence.
Floyd timely filed his rule 3.850 motion, raising four claims of ineffective assistance of counsel and one claim of cumulative error. Floyd subsequently abandoned one claim, and the postconviction court summarily denied one claim. The postconviction court ordered an evidentiary hearing on Floyd's remaining claims: that trial counsel was ineffective for eliciting the specific nature of Floyd's prior felony convictions and that trial counsel was ineffective for affirmatively misadvising Floyd that the State would not be able to impeach Floyd with his prior conviction for the armed sexual battery of the State's witness, S.D., because the conviction was the subject of a pending appeal. Floyd alleged that it was not reasonable trial strategy to elicit testimony from Floyd that none of his priors were for violent or sexual offenses where the State was then permitted to inquire about the armed sexual battery conviction which was pending on appeal at the time of trial. He alleged that he was prejudiced by counsel's misadvice because the case was decided on credibility, that of Floyd and of the State's witnesses, and trial counsel's strategy discredited Floyd.
Floyd and his trial counsel testified at the postconviction evidentiary hearing. Floyd testified consistently with the allegations in his motion regarding counsel's misadvice. He admitted that he had wanted to testify in this trial because he believed his decision not to testify in the trial involving S.D. had harmed his case; however, he also stated that he would not have testified in this trial had he known that the prior armed sexual battery conviction would be disclosed.
Floyd's trial counsel testified that Floyd had been adamant about testifying in this trial. Counsel testified that he and Floyd had discussed Floyd's testimony and had made the decision to disclose the specifics of Floyd's prior convictions. Counsel wanted the jury to know that none of Floyd's priors were violent or sexual crimes, and he believed that Floyd's prior offenses for purposes of his testimony in this case did not include the conviction for the armed sexual battery of S.D. Counsel further testified that the jury had been made aware of Floyd's prior sexual battery charge because S.D. had testified for the State as a Williams rule witness. However, counsel conceded that had he known that Floyd would be required to disclose the prior armed sexual battery conviction, he would not have asked Floyd about the specific nature of his prior felonies; counsel would have limited Floyd's testimony to only the number of priors. In denying Floyd's motion, the postconviction court found counsel's testimony more credible than Floyd's and determined that Floyd was not prejudiced by counsel's misadvice.
Williams v. State, 110 So. 2d 654, 663 (Fla. 1959).
On review of an order denying a postconviction motion following an evidentiary hearing, we defer to the postconviction court's credibility determinations and findings of fact that are supported by competent substantial evidence. Moore v. State, 132 So. 3d 718, 727 (Fla. 2013) ; see also Campbell v. State, 247 So. 3d 102, 106-07 (Fla. 2d DCA 2018). "[W]e review de novo the court's legal conclusions." Campbell, 247 So. 3d at 106 (citing Light v. State, 796 So. 2d 610, 615 (Fla. 2d DCA 2001) ).
Although the postconviction court found counsel more credible, the court failed to recognize that there was no conflict in the testimony on the claim of misadvice: counsel testified that had he known that the prior armed sexual battery conviction would have to be disclosed as one of Floyd's priors, he would not have elicited the specific nature of Floyd's priors and would have asked only how many prior felony convictions Floyd had. On the claims of misadvice and ineffectiveness in eliciting testimony regarding Floyd's conviction for armed sexual battery, there was no issue of witness credibility. See Campbell, 247 So. 3d at 107 (quoting Feldpausch v. State, 826 So. 2d 354, 356 (Fla. 2d DCA 2002) ). The postconviction court "needed only to apply the[ ] established facts to the law regarding ineffective assistance of counsel." Yarbrough v. State, 871 So. 2d 1026, 1029 (Fla. 1st DCA 2004).
"To establish ineffective assistance when the issue involves a strategic decision made by trial counsel, the movant must show that the strategy was ‘unreasonable.’ " Bowers v. State, 929 So. 2d 1199, 1200 (Fla. 2d DCA 2006) (quoting Florida v. Nixon, 543 U.S. 175, 189, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) ). Here, counsel incorrectly believed that Floyd needed only to disclose convictions which occurred prior to the date of the offense for which he was on trial, but "[t]he pendency of an appeal ... does not render evidence of the conviction from which the appeal was taken ... inadmissible. Evidence of the pendency of the appeal is admissible [for impeachment]." § 90.610(2), Fla. Stat. (2014). It seems clear that counsel's strategy—based on a misunderstanding of the law—was objectively unreasonable, resulting in deficient performance. See Bowers, 929 So. 2d at 1201 ("In that there was no physical evidence linking [the defendant] to the instant crime, and in that the State's case rested solely on [the victim's] testimony, informing the jury of [the defendant's] prior convictions on similar offenses was prejudicial to [the] defense and, as such, was not a reasonable defense strategy."); State v. Jackson, 204 So. 3d 958, 964 (Fla. 5th DCA 2016) (concluding that counsel rendered deficient performance where she misunderstood the law on insanity as a defense); cf. Lamb v. State, 124 So. 3d 953, 957 (Fla. 2d DCA 2013) ("Trial counsel's explanation for failing to file the motion reveals a fundamental misunderstanding of the difference between a motion for judgment of acquittal and a motion for new trial. We conclude that counsel's decision to forego a motion for new trial was not reasonable trial strategy.").
We must next consider whether counsel's actions prejudiced Floyd. Floyd's credibility was assuredly an issue for the jury, and the victim's credibility was similarly critical. There were also two Williams rule witnesses: the victim in the sexual battery conviction which was then on appeal, S.D., and A.B. Both S.D. and A.B. testified that Floyd agreed to pay them in exchange for sex, drove them to a remote location, raped them at knife point, did not pay them the agreed upon amount, and stranded them.
There was also a defense witness who testified that while she was in jail with B.M., the victim in this case, she overheard B.M. admit on two occasions that Floyd did not rape her and that she was testifying at Floyd's trial to punish him for not paying her. The second occasion involved A.B., and the defense witness testified that B.M. and A.B. were "laughing, giggling ... stating that they were on their way to testify at [Floyd's] trial" and that "they were going to make him pay for not paying them, leaving them stranded." The witness did not testify that she received any beneficial treatment for her testimony. The trial to which B.M. and A.B. were referring was apparently Floyd's trial in S.D.'s case.
During direct examination, Floyd was asked about his prior felonies and he testified that none of them were sexual or violent. He further testified that he solicited B.M. and that the sex was consensual. Floyd denied threatening B.M. with a knife.
Before beginning cross-examination of Floyd, the prosecutor requested a bench conference. The prosecutor pointed out that Floyd's testimony regarding his priors was inaccurate: Floyd's conviction for the armed sexual battery of S.D. was a prior felony that was both violent and sexual. Floyd's trial counsel stated that because the conviction was on appeal he did not believe it was required to be included in Floyd's prior record for purposes of his trial testimony. After the trial court confirmed that a felony conviction on appeal was a prior felony for purposes of Floyd's trial testimony, Floyd's trial counsel requested and was given permission to reopen direct examination. Floyd was asked whether he had been convicted of an armed sexual battery, whether that conviction was related to this case, and whether it was the case in which B.M. and A.B. testified. Floyd answered yes to each question.
On cross-examination, Floyd was asked to clarify whether his testimony that he had no prior convictions of a sexual or violent nature was true and whether he had previously been convicted of the armed sexual battery of S.D. Floyd responded that his testimony was not true and confirmed that he had been convicted of the armed sexual battery of S.D.
Floyd was prejudiced by the jury's knowledge that he had been convicted by another jury of the same crime against a witness in the current case. By eliciting Floyd's testimony that he had a prior conviction for a similar crime "trial counsel impugned his client's credibility in front of the jury." See Bowers, 929 So. 2d at 1201. In cases where the crimes are the same or substantially the same—as here—such testimony is "highly damaging." See id. Rather than create the impression that Floyd was being honest about his past and therefore would be honest in his testimony regarding the events at issue, counsel's misunderstanding of the law "made it appear as if [Floyd] intentionally had tried to omit this additional information." See id. at 1202. Counsel's strategy—based on a misunderstanding of the law—was patently unreasonable and not only discredited his client but effectively bolstered a witness's testimony. Cf. McNabb v. State, 967 So. 2d 1086, 1087 (Fla. 1st DCA 2007) ("[E]vidence relating to each of the crimes may have the effect of bolstering the proof of the other. While the testimony in one case standing alone may be insufficient to convince a jury of the defendant's guilt, evidence that the defendant may also have committed another crime can have the effect of tipping the scales." (quoting Crossley v. State, 596 So. 2d 447, 450 (Fla. 1992) )). The testimony elicited by trial counsel was not only that Floyd had a prior conviction for armed sexual battery; the testimony was that Floyd had a prior conviction for the armed sexual battery of S.D. Cf. Sierra v. State, 230 So. 3d 48, 52 (Fla. 2d DCA 2017) ("[A]lthough the prohibitions on civilians vouching for a victim's credibility have not been treated as harshly by the courts, such testimony can still be harmful error[.]" (second alteration in original) (quoting Cavaliere v. State, 147 So. 3d 628, 629 (Fla. 2d DCA 2014) )).
The prejudice necessary for postconviction relief "does not require the defendant to show that ‘counsel's deficient conduct more likely than not altered the outcome,’ but it does require the defendant to show that in light of all the evidence surrounding his conviction, defense counsel's conduct renders the results of the proceeding unreliable." Henry v. State, 948 So. 2d 609, 617 (Fla. 2006) (citing Gaskin v. State, 822 So. 2d 1243, 1247 n.3 (Fla. 2002) ). Here, counsel's unreasonable strategy casts doubt upon the outcome of the trial, rendering the result unreliable. See also Rodriguez v. State, 761 So. 2d 381, 383 (Fla. 2d DCA 2000) (reversing judgment and sentence based on ineffective assistance of counsel on the face of the record where counsel failed to object to improper questioning about the defendant's prior convictions, leaving "a reasonable probability that the results of the trial would have been different"). We reverse the order denying Floyd's motion for postconviction relief and remand with instructions that a new trial be held.
Reversed and remanded.
LaROSE and SLEET, JJ., Concur.