Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3282 _____________________________ DEDRICK BERNARD BOONE, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Mark Borello, Judge. August 6, 2020 B.L. THOMAS, J. Appellant challenges the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons stated below, we affirm. A jury found Appellant guilty of armed robbery with a firearm with the specific finding that he carried, used, threatened to use or attempted to use a firearm, but that he did not actually possess a firearm. The jury also found Appellant guilty of aggravated battery but found that he did not actually possess a firearm. The court adjudicated Appellant guilty and sentenced him on the armed robbery offense to a minimum mandatory term of life in prison as a prison releasee reoffender, and to 30 years in prison as a habitual violent felony offender, with a 15-year minimum mandatory term as a prison releasee reoffender for the aggravated battery offense. On appeal, this Court affirmed Appellant’s judgment and sentence without opinion and issued a mandate on May 9, 2017. On February 26, 2019, Appellant filed the instant motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, raising five claims of ineffective assistance of counsel. The trial court denied the motion on the merits. This timely appeal follows. To prevail on a claim for ineffective assistance of counsel, an appellant must establish that counsel’s performance was deficient and prejudicial; if one prong fails, it is unnecessary to consider the remaining prong. State v. Barnes, 24 So. 3d 1244, 1248 (Fla. 1st DCA 2009). To establish deficiency, an appellant must show that counsel’s performance was unreasonable under “prevailing professional norms.” Id. To establish prejudice, an appellant must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. In ground one of his motion, Appellant argued that counsel was ineffective for failing to file a motion to dismiss the information as fundamentally defective. He contended that the information was grammatically flawed in that “the phrase ‘with intent to permanently or temporarily deprive [T.M.] of the vehicle, money or other property’, is set off by commas.” Under grammatical rules, the use of commas to set off this phrase effectively removed an essential element of robbery from the charge. Thus, the information failed to allege the elements of robbery. Appellant also argued that the information did not cite the subsection of the statute that defined robbery, but only cited the subsection that defined armed robbery. The trial court denied this ground, finding that the information was not fundamentally defective and that counsel was not ineffective for failing to raise meritless claims. “An information is fundamentally defective only where it totally omits an essential element of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to 2 double jeopardy.” State v. Burnette, 881 So. 2d 693, 694–95 (Fla. 1st DCA 2004). Here, the information charged the following: [Appellant] did carry a firearm, and did unlawfully by force, violence, assault, or putting in fear, take money or other property of [T.M.] . . . with the intent to permanently or temporarily deprive [T.M.] of the money or other property, and during the commission . . . did actually possess a firearm, contrary to . . . Sections 812.13(2)(a) and 775.087(2)(a)1. This language is consistent with the language in section 812.13(1)–(2)(a), Florida Statutes (2014). No element was omitted. Further, while the specific subsection for robbery was not cited, the subsection for robbery with a firearm was cited. Thus, the information was not fundamentally defective. Appellant’s counsel was not ineffective for failing to raise this meritless argument. See Lukehart v. State, 70 So. 3d 503, 512 (Fla. 2011) (“[C]ounsel cannot be deemed ineffective for failing to make a meritless argument.” (quoting Schoenwetter v. State, 46 So. 3d 535, 546 (Fla. 2010))). Thus, the trial court properly denied this claim. In ground two of his motion, Appellant claimed that counsel was ineffective for failing to object to the jury instruction on armed robbery because the jury instruction did not correlate to the information. Appellant claimed that he was charged with “only one form of robbery, where force or threat of force was used during the taking, but the jury was instructed on the two additional forms of robbery . . . that force (or threat of force) was used either prior to or after the taking.” Because the jury instructions allowed for a conviction based on elements not charged in the information, his conviction must be vacated as a nullity. The trial court denied this ground, finding that counsel was not ineffective because the standard instructions were given at trial and Appellant had not provided a reasonable basis for counsel to object to the standard instructions. The trial court found that Appellant was actually attacking the language of the information and that such argument was meritless. 3 To the extent that Appellant attacks the information, this claim is without merit for the same reasons discussed above in ground one. To the extent that Appellant claims his counsel should have objected to the jury instructions, this claim is also meritless. The record indicates that the standard jury instruction was used. The trial court instructed the jury that “[i]n the course of the taking means that the act occurred prior to, contemporaneous with, or subsequent to the taking of the property and that the act and the taking of the property constitute a continuous series of acts or events.” This language is identical to the language found in the standard jury instructions and has not been invalidated. See Fla. Std. Jury Instr. (Crim.) 15.1. Counsel cannot be ineffective for failing to object to a standard jury instruction that has not been invalidated. See Lukehart, 70 So. 3d at 520 (holding that counsel was not ineffective because any objection to the jury instructions would have been meritless as the standard instruction was given and had not been invalidated). Thus, the trial court properly denied this claim. In ground three of Appellant’s motion, Appellant argued that counsel was ineffective for failing to move for judgment of acquittal as to aggravated battery. He asserted that he was charged with both aggravated battery and robbery with a firearm based upon the same act. In addition, the jury found that he did not actually possess a firearm. Appellant’s counsel should have moved for judgment of acquittal because the jury’s verdict showed there was insufficient evidence to convict Appellant of aggravated battery based on the use of a firearm. The trial court denied this ground, construing Appellant’s claim as a double jeopardy claim. The trial court noted that evidence at trial supported two distinct criminal acts: hitting the victim in the head and taking the property and the car at gunpoint. Further, Appellant was charged as a principal, so actual possession was not required. Additionally, the trial court found that the verdicts were not inconsistent, but even if they were, Florida law allows for inconsistent verdicts. 4 In determining whether double jeopardy attaches “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. U.S., 284 U.S. 299, 304 (1932) (citing Gavieres v. U.S., 220 U.S. 338, 342 (1911)). Here, aggravated battery with a firearm and robbery with a firearm each requires proof of a fact that the other does not. “Robbery requires proof of a taking or depriving of property, an element that battery does not require. . . . [T]he crime of battery requires an actual and intentional touching of the victim, which is not necessarily an element of robbery.” Hamrick v. State, 648 So. 2d 274, 276 (Fla. 4th DCA 1995). Therefore, these convictions do not violate double jeopardy. Counsel cannot be deficient for making a meritless argument. See Lukehart, 70 So. 3d at 512 (“[C]ounsel cannot be deemed ineffective for failing to make a meritless argument.” (quoting Schoenwetter v. State, 46 So. 3d at 546)). Thus, the trial court properly denied this claim. To the extent that Appellant argues that the jury’s verdict demonstrates that Appellant’s counsel should have moved for judgment of acquittal based on the lack of evidence supporting possession of a firearm, this claim is meritless and refuted by the record. “Counsel cannot be ineffective for failing to do something that counsel actually did.” Turner v. State, 91 So. 3d 916, 918 (Fla. 2d DCA 2012). Counsel made a motion for judgment of acquittal and argued that the State had not proven actual possession of a firearm or that any firearm was used in a deadly manner. However, the testimony at trial established that the victim was approached by three men, one of whom was Appellant, and the victim reached into his car to retrieve a cigarette for one of the men. As the victim came out of the car, Appellant struck the victim in the head. The victim said he saw that Appellant had a gun in his hand and all three men had guns. The victim struck one of the men and ran, and multiple people shot at him. Further, Appellant and his codefendants took the victim’s property. Because this evidence supported the conviction of aggravated battery based on use of a deadly weapon when considered in the light most favorable to the state, the motion for judgment of acquittal was properly denied. See Jeffries v. State, 797 So. 2d 573, 580 (Fla. 2001) (“A motion for judgment of acquittal should only be granted if there is 5 no view of the evidence from which a jury could make a finding contrary to that of the moving party.” (citing Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974))). Additionally, Florida law allows factually inconsistent verdicts that do not negate a necessary element for another count. State v. Carswell, 914 So. 2d 9, 11–12 (Fla. 4th DCA 2005). The jury in Carswell convicted the defendant of aggravated battery but found that he did not possess a firearm. Id. at 11. The court found that the defendant was not entitled to judgment of acquittal on the aggravated battery charge because the verdict, while factually inconsistent, was not truly inconsistent as aggravated battery could be proven by other means. Id. The Carswell court also found that the jury’s inconsistent verdict was an exercise of the jury’s pardon power. Id. Similarly, here, the jury found Appellant guilty of armed robbery with a firearm and aggravated battery but found that defendant did not actually possess a firearm. Even though the jury found that Appellant did not actually possess the firearm, as in Carswell, this factually inconsistent verdict may have been an exercise of the jury’s pardon power with regard to any enhancements or reclassifications under the 10-20-life statute. Thus, the trial court properly denied this claim. In ground four, Appellant claimed that counsel was ineffective by failing to request an independent act jury instruction. Appellant alleged that he had no advance knowledge of the robbery and that it was an independent act of his co-defendants. If counsel had requested the instruction, the jury could have found him not guilty or the issue would have been preserved for appellate review. The trial court denied this claim, noting that Appellant’s claims were conclusory. The trial court also found that there was no evidence to support the independent act jury instruction and, even if there was, the outcome would not have been different based on the evidence presented. “The ‘independent act’ doctrine applies when one cofelon, who previously participated in a common plan, does not participate in acts committed by his cofelon, ‘which fall outside of, and are foreign to, the common design of the original collaboration.’” Ray v. State, 755 So. 2d 604, 609 (Fla. 2000)). Appellant only makes conclusory 6 allegations that he had no knowledge of the robbery and that the robbery was an independent act of his co-defendants. However, evidence at trial refutes this claim. The victim testified that Appellant hit the victim in the head, had a gun in his hand, and took his car. The victim also indicated that he struggled with two of the three men and that the third suspect shot at him. Further, an officer testified that he attempted to pull over the victim’s car when the driver fled. The officer gave chase and found the car disabled with Appellant present, and Appellant ran from the car before being detained. This evidence demonstrated that Appellant was a willing participant in the crimes, and the independent act instruction would not have been appropriate. Even if the court had granted the request, the outcome of the proceeding would not have been different because there was sufficient evidence to demonstrate that Appellant participated in the robbery and battery. Thus, the trial court properly denied this claim. In ground five, Appellant claimed that counsel was ineffective for failing to obtain an expert witness to testify regarding the alleged victim’s injuries and whether they amounted to great bodily harm. Appellant alleged that had he known that there was no evidence of great bodily harm he would have entered a plea. Appellant argued that, because the jury did not find that Appellant actually possessed a firearm, the only basis for an aggravated battery conviction would have been great bodily harm. If counsel had presented an expert to distinguish moderate injuries from great bodily harm, the outcome would have been different. The trial court denied this claim, finding that counsel was not ineffective. The court noted that the state proceeded on a deadly weapon theory to support the aggravated battery, and counsel had no reason to retain an expert to testify regarding an element the state was not proceeding on. Further, counsel could not have known prior to trial that the jury would find Appellant did not actually possess the firearm. Appellant’s claim is meritless. The record shows that counsel cross-examined the victim on the limited extent of his injuries. Counsel also cross-examined multiple officers on the limited nature of the victim’s injury, indicating that the victim did not appear to need medical treatment or did not request any medical 7 treatment. Because counsel cross-examined the witness thoroughly enough to show that the victim’s injury was minimal, counsel was not required to call an expert witness. See Crain v. State, 78 So. 3d 1025, 1040–42 (Fla. 2011) (holding that counsel’s decision not to call a defense expert was a reasonable strategic decision where defense counsel was able to obtain significant concessions from the state’s witnesses through cross-examination). Additionally, the information only charged the deadly weapon theory of aggravated battery. The state proceeded on a deadly weapon theory, not great bodily harm theory. Counsel cannot be ineffective for not calling a defense expert when the element for which that expert would have testified was not charged or proceeded on by the state. Thus, the trial court properly denied the claim. As to prejudice, Appellant claims that the jury’s finding that he did not actually possess a firearm must have meant that they believed the victim suffered great bodily harm. This argument is meritless. As discussed above, this factually inconsistent verdict could have been an exercise of the jury’s pardon power. See Carswell, 914 So. 2d at 9. Thus, the trial court properly denied this claim. Finally, Appellant’s statement that he would have entered a plea had he known that there was no evidence of great bodily harm is incredible and speculative. Appellant does not allege, and the record does not reveal, that a beneficial plea was offered by the state. Thus, Appellant’s claim that he would have received a more favorable adjudication and sentence is speculative. 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.”). Further, the state proceeded on a deadly weapon theory, not great bodily harm, so Appellant’s claim that he would have entered a plea based on the lack of evidence on an element not charged is incredible. See Capalbo v. State, 73 So. 3d 838, 840 (Fla. 4th DCA 2011) (“A postconviction movant cannot disown knowledge of the obvious. A postconviction court is not required to hold hearings on absurd claims or accept as true allegations that defy logic and which are inherently incredible.”). 8 Because all of Appellant’s claims are meritless, we AFFIRM. RAY, C.J., and KELSEY, J., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Dedrick Bernard Boone, pro se, Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee. 9