Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D21-2769 _____________________________ CLAUDE LAMITE BULLARD, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Okaloosa County. John Jay Gontarek, Judge. December 1, 2021 PER CURIAM. Appellant challenges the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We write to address three of Appellant’s claims. We affirm on the other claims without comment. Based on events which occurred on September 24, 2015, a grand jury indicted Appellant on a charge of first-degree premeditated murder with a firearm. After trial, the jury found Appellant guilty as charged. The trial court sentenced Appellant to life in prison. This Court affirmed Appellant’s judgment and sentence and issued its mandate on December 19, 2018. On December 7, 2020, Appellant filed his original motion under Florida Rule of Criminal Procedure 3.850. The trial court struck the motion as facially insufficient and granted Appellant 60 days to amend. Thereafter, Appellant filed an amended 3.850 motion. On August 13, 2021, the trial court denied the motion. This appeal follows. In claim one, Appellant argued that trial counsel was ineffective for misadvising him about the independent act doctrine. The trial court denied this claim finding that the independent act instruction was inappropriate and would not have changed the outcome at trial. We agree. When two or more persons plan to commit a crime, one may assert that the others’ actions were unforeseeable and outside the scope of the plan. Kitt v. State, 260 So. 3d 462, 463 (Fla. 1st DCA 2018). “[A]n independent act of a codefendant occurs when a person other than the defendant commits a crime (1) which the defendant did not intend to occur, (2) in which the defendant did not participate, and (3) which was outside of, and not a reasonably foreseeable consequence of, the common design or unlawful act contemplated by the defendant.” Jackson v. State, 18 So. 3d 1016, 1026 (Fla. 2009); Roberts v. State, 4 So. 3d 1261, 1263 (Fla. 5th DCA 2009) (stating that the independent act defense applies when the defendant 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.’” (quoting Ray v. State, 755 So. 2d 604, 609 (Fla. 2000))). At trial, one of the co-felons testified that, while he discussed the drug transaction with the victim, Appellant stood outside the car with his gun drawn and started firing at the victim; Appellant then grabbed the drugs, and the three co-felons left. In contrast, Appellant claimed that he willingly participated in the robbery—but had not agreed to or planned the murder—and that the independent act defense would have established that he had no motive and that he was not the triggerman. Appellant is mistaken. Even if the jury believed that another co-felon shot the victim, the independent act defense would not have been appropriate because homicide is a foreseeable outcome of an armed robbery. See Cannon v. State, 18 So. 3d 562, 564 (Fla. 1st DCA 2009) (holding the independent act instruction is not appropriate where one takes part in an armed robbery that resulted in murder 2 from forces that they set in motion). Because this defense was not appropriate, counsel was not ineffective for advising Appellant against this defense. See Grosvenor v. State, 874 So. 2d 1176, 1185 n.4 (Fla. 2004) (Bell, J., concurring in part) (“I do not see how counsel’s failure to advise a defendant of a nonviable defense could ever constitute deficient performance.”); Dickerson v. State, 285 So. 3d 353, 358 (Fla. 1st DCA 2019) (“Trial counsel cannot be held to have been ineffective for not making meritless motions.”). Thus, the trial court properly denied this claim. In claim two, Appellant argued that his counsel was ineffective for failing to object to a jury member—purportedly a Mr. Cobb—who Appellant alleged did not understand the principal theory. The trial court denied this argument because the alleged claim was based on a misunderstanding of the transcript, and the principal instruction was properly given. Appellant’s second claim also fails. First, the claim is facially insufficient. The transcript provided indicates that the judge and Mr. Cobb—who was an attorney representing Appellant and not a juror—were discussing a question sent out by the jury regarding the principal theory. There was no juror involved in this discussion. Thus, Appellant’s claim is insufficient after an opportunity to amend, and he is not entitled to another opportunity. See Daniels v. State, 66 So. 3d 328, 330 (Fla. 1st DCA 2011) (holding that a trial court is not required to grant more than one opportunity to amend an insufficient motion). Therefore, the trial court properly denied the second claim. Moreover, as to prejudice, Appellant alleged that if the principal theory had been properly explained, the jury could not have found him guilty. This is erroneous for at least two reasons. First, the trial court gave the proper principal instruction. Second, under the principal theory, “[w]hether a defendant knows of a criminal act ahead of time or physically participates in the crime, participation with another in a common criminal scheme renders the defendant guilty of all crimes committed in furtherance of that scheme.” Jackson, 18 So. 3d at 1026. Even if the jury believed that a co-felon killed the victim, Appellant could still have been convicted as a principal to the murder. Thus, Appellant’s claim of 3 prejudice fails, and it is clear the trial court properly denied the claim. In claim three, Appellant alleged, in part, that his counsel failed to object to allowing the charging indictment into the jury room during deliberations and, because of this error, the jury’s finding of guilty was based on the indictment, and not the evidence. The trial court found that Appellant failed to state a claim for relief because the information is allowed in the jury room. The third claim lacks merit. As the trial court found, the information or indictment is allowed in the jury room. Fla. R. Crim. P. 3.400(a). Counsel cannot be ineffective for making a meritless objection. See Hitchcock v. State, 991 So. 2d 337, 361 (Fla. 2008) (“Counsel cannot be deemed ineffective for failing to make a meritless objection.”). Also, Appellant’s claim that the jury’s guilty verdict indicated that their decision was based on the indictment— and not the evidence—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.”). Accordingly, Appellant failed to demonstrate either deficient performance or prejudice, and, therefore, the trial court properly denied this claim. Because all of Appellant’s claims are meritless, we AFFIRM. ROWE, C.J., and BILBREY and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Claude Lamite Bullard, pro se, Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee. 4