Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-4531 _____________________________ REYNOLDO MARTIN-GODINEZ, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Linda F. McCallum, Judge. January 31, 2020 WINOKUR, J. Reynoldo Martin-Godinez appeals the trial court’s denial of postconviction relief. Because the records attached to the order denying relief do not conclusively refute Ground One of the motion, we reverse the denial of that ground. 1 Martin-Godinez was convicted of three counts of sexual battery on a child under the age of 12, one count of lewd or lascivious molestation, and one count of promoting the sexual 1 We affirm the denial of Grounds Two through Four of Martin-Godinez’s motion without further comment. performance of a minor. The convictions were affirmed on appeal. Martin-Godinez v. State, 225 So. 3d 926 (Fla. 1st DCA 2017). Martin-Godinez then filed a motion for postconviction relief. Among other grounds, he argued that his attorney was ineffective for failing to object to the victim’s videotaped Child Protection Team (CPT) interview being provided to the jury during deliberations. The trial court summarily denied all grounds for relief. The trial court denied Martin-Godinez’s claim regarding the CPT interview videotape, concluding that the video was entered into evidence and therefore it was proper to send it back into the jury room pursuant to Florida Rule of Criminal Procedure 3.400(a)(3). We disagree. “[V]ideotaped out-of-court interviews with child victims introduced into evidence under section 90.803(23)[, Florida Statutes,] shall not be allowed into the jury room during deliberations.” Young v. State, 645 So. 2d 965, 967 (Fla. 1994). Trial counsel can be deemed ineffective for failing to object to a videotaped CPT interview being sent to the jury room during deliberations where this omission results in prejudice. See McLevy v. State, 849 So. 2d 431, 432 (Fla. 1st DCA 2003); see also Otero v. State, 169 So. 3d 231 (Fla. 2d DCA 2015). Nonetheless, we hold that Martin-Godinez did not demonstrate an entitlement to an evidentiary hearing on this claim, because he did not make a sufficient allegation of prejudice. 2 To prove ineffective assistance a defendant must allege (1) the specific acts or omissions of counsel which fell below a standard of reasonableness under prevailing professional norms and (2) that the defendant’s case was prejudiced by these acts or omissions such that the outcome of the case would have been different. Strickland v. Washington, 466 U.S. 668, 690-92 (1984). The prejudice prong requires that the defendant demonstrate a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. See Id., 466 U.S. at 694. 2 Martin-Godinez is entitled to an evidentiary hearing on this claim unless the claim is insufficient on its face or is conclusively refuted by the record. Fla. R. Crim. P. 3.850(f). 2 A defendant must allege sufficient facts to demonstrate “how the outcome would have been different had counsel acted otherwise” in order to merit an evidentiary hearing. Ragsdale v. State, 720 So. 2d 203, 208 (Fla. 1998). Regardless of whether counsel should have objected to the videotape being given to the jury, Martin-Godinez made an insufficient allegation of prejudice to overcome a summary denial of this claim. Martin-Godinez did not allege that “but for counsel’s errors, the result of the proceeding would have been different.” Instead, he alleged that if counsel had objected, he would have received relief on direct appeal, where the harmless error standard would have resulted in reversal. 3 If counsel had done so, Martin-Godinez reasons, he would not have to prove prejudice under the considerably more difficult standard under Strickland. We reject the argument that a defendant can demonstrate prejudice under Strickland by arguing that if counsel had objected, the defendant would have secured relief on direct appeal. First, it does not allege that the result of the proceeding would have been different, as Strickland requires. More importantly, it implies that, had counsel objected, the court would have erroneously overruled the objection, thus giving the defendant a ground for appeal. This argument does not demonstrate prejudice under Strickland. See Carratelli v. State, 961 So. 2d 312, 323 (Fla. 2007) (holding that “a defendant alleging that counsel was ineffective for failing to object or preserve a claim of reversible error in jury selection must demonstrate prejudice at the trial, not on appeal.”); Strobridge v. State, 1 So. 3d 1240, 1242 (Fla. 4th DCA 2009) (“The prejudice in counsel’s deficient performance [in failing to preserve error for appeal] is assessed based upon its effect on the results at trial, not on its effect on appeal.”). Moreover, this implication runs contrary to well-settled law that an appellate court presumes that 3 See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (“The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict, or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”). 3 a trial court correctly applies the law. See, e.g., Doe v. Baptist Primary Care, Inc., 177 So. 3d 669, 673 (Fla. 1st DCA 2015) (noting that “the decision of the trial court enjoys a presumption of correctness and the burden falls to the appellant to demonstrate error”). Presumably, if counsel had made a proper objection, the court would have granted it, and the defendant would have had no appellate issue. As such, the defendant can only secure relief (or at least an evidentiary hearing) by alleging facts showing that the result of the proceeding would have been different but for counsel’s errors. Because Martin-Godinez’s first claim is facially insufficient and not conclusively refuted by the record, we reverse and remand so that the postconviction court may strike the claim and provide sixty days to amend it. See Fla. R. Crim. P. 3.850(f). REVERSED and REMANDED. LEWIS and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Reynoldo Martin-Godinez, pro se, Appellant. Ashley Moody, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee. 4