Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-4298 _____________________________ OMAR SANTIAGO, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Mark Borello, Judge. March 2, 2020 PER CURIAM. Omar Santiago appeals an order denying his motion for postconviction relief. For the reasons below, we affirm. Santiago was convicted of first-degree murder and solicitation to commit a capital felony based on a shooting at a nightclub. He was sentenced to life in prison. This Court affirmed his judgment and sentence on direct appeal. Santiago v. State, 155 So. 3d 343 (Fla. 1st DCA 2015) (unpublished table decision). Santiago then moved for postconviction relief, raising four claims of ineffective assistance of counsel. The postconviction court summarily denied claims one and four. Claims two and three were denied after an evidentiary hearing. Preservation Although Santiago raised four issues in his postconviction motion, he appeals only the denial of claims two, three, and four. Santiago thus waived any argument on claim one by failing to address the claim in his initial brief. See Watson v. State, 975 So. 2d 572, 573 (Fla. 1st DCA 2008) (holding that an appellate court “may review only those arguments raised and fully addressed in the brief”). Analysis We review an order summarily denying a postconviction motion de novo. Corbett v. State, 267 So. 3d 1051, 1055 (Fla. 1st DCA 2019). But when reviewing an order denying a postconviction motion after an evidentiary hearing, we defer to the trial court’s findings of facts that are supported by competent, substantial evidence and review the conclusions of law de novo. Hunter v. State, 87 So. 3d 1273, 1275 (Fla. 1st DCA 2012). To prevail on his claims of ineffective assistance of counsel, Santiago had to show that (1) counsel’s performance was outside the wide range of reasonable professional assistance; and (2) such conduct in fact prejudiced the outcome of the proceedings because without the conduct, there was a reasonable probability that the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92 (1984); Spencer v. State, 842 So. 2d 52, 61 (Fla. 2003). Santiago did not make the required showing here. Claim Two—Failure to Investigate and Interview a Witness Santiago alleged in his motion that his counsel was ineffective for failing to discover and interview Victor Aguilera, a witness Santiago claims would have presented exculpatory evidence. Though he did not make the argument below, Santiago argues on appeal that this claim should have been construed as a newly discovered evidence claim because it was clear that neither Santiago nor his counsel could have discovered the witness earlier. But in his motion, Santiago alleged only that Aguilera would have been available had counsel conducted a proper and timely 2 investigation. To qualify as newly discovered evidence, the asserted facts must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence. See Robinson v. State, 707 So. 2d 688, 691 (Fla. 1998) (quoting Blanco v. State, 702 So. 2d 1250, 1252 (Fla.1997)). Santiago admitted that he was at the club during the shooting and knew that there were witnesses to the shooting. But Santiago never told his counsel about any potential witnesses because Santiago believed it was his counsel’s job to investigate. Santiago’s counsel testified at the evidentiary hearing and asserted that he was unaware of Aguilera as a potential witness. And the defense’s theory was that Santiago did not commit the murder. Santiago also testified at the hearing. He claimed that he met Aguilera in the county jail after he was sentenced. After hearing testimony from Santiago and his trial counsel, the postconviction court found that Santiago’s counsel conducted a reasonable investigation through depositions and reviewing surveillance footage of the shooting. The court also found that Santiago was not credible. Because the court’s findings were supported by competent, substantial evidence, this claim was properly denied. Claim Three—Failure to Impeach the State’s Main Witness Next, Santiago argues that his counsel was ineffective for not impeaching Sujey Ramos, the victim’s girlfriend who identified Santiago as the shooter, with evidence that Ramos tried to extort Santiago and his mother. Santiago contends that Ramos asked Santiago’s mother for money in exchange for her changing her testimony that Santiago was the shooter. Santiago testified that his mother then obtained an injunction against Ramos. Santiago asserts that his counsel should have cross-examined Ramos about the attempted extortion. But Santiago’s claim fails because the record shows that defense counsel tried to present evidence of the extortion through the direct testimony of Santiago’s mother about the injunction. But the trial court prohibited the testimony. See Spann v. State, 985 So. 2d 1059, 1067 (Fla. 2008) (holding that counsel was not 3 deficient when he tried to challenge a witness’ testimony). And Santiago failed to establish prejudice by showing that the result of the proceeding would have been different had Ramos been questioned about the extortion. The record shows that defense counsel presented evidence of the extortion attempt to the jury by introducing a recorded conversation between Santiago and an undercover officer. In the recording, Santiago told the officer that Ramos asked his mother for $10,000 to not testify against him. Because Santiago showed neither ineffectiveness of counsel nor prejudice, this claim was properly denied. Claim Four—Advising Santiago Not to Testify Last, Santiago claims that his counsel rendered deficient performance when counsel advised him not to testify. This claim is conclusively refuted by the record. A claim that is conclusively refuted by the record may be summarily denied by the postconviction court. See Peede v. State, 748 So. 2d 253, 257 (Fla. 1999); see Fla. R. Crim. P. 3.850(d). Here, the postconviction court attached portions of the record showing that the trial court conducted a thorough colloquy in which Santiago affirmed his decision not to testify. And the record shows that the trial court found that Santiago’s decision was freely, voluntarily, knowingly, and intelligently given. Thus, this claim was properly denied, too. Finding no error by the postconviction court, we affirm the order denying Santiago’s motion for postconviction relief. AFFIRMED. ROBERTS, ROWE, and BILBREY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 4 Omar Santiago, pro se, Appellant. Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee. 5