Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT RUSHAWN COOPER, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-3721 March 30, 2022 Appeal from the Circuit Court for Polk County; Jalal A. Harb, Judge. Howard L. Dimmig, II, Public Defender, and David B. Falstad, Special Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee. ROTHSTEIN-YOUAKIM, Judge. Rushawn Cooper appeals the order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the portions of the record attached to the postconviction court's order do not conclusively refute his claim of ineffective assistance of counsel in ground two of his motion, we reverse with respect to that ground and remand for further proceedings. In all other respects, we affirm. In 2016, a jury found Cooper guilty of second-degree murder. The evidence at trial established that after an argument, Cooper had hit and killed his girlfriend with his vehicle as she attempted to flee from him on foot. Cooper's theory of defense was that the collision was accidental. The trial court sentenced Cooper to life imprisonment, and this court per curiam affirmed his judgment and sentence. See Cooper v. State, 242 So. 3d 361 (Fla. 2d DCA 2018) (table decision). Cooper timely moved for postconviction relief, asserting four claims of ineffective assistance of counsel. The postconviction court denied one of the claims following an evidentiary hearing and summarily denied the rest. On appeal, Cooper challenges only the summary denial of ground two. We review de novo the summary denial of ground two, accepting Cooper's factual allegations as true to the extent that they are not refuted by the record. See Jennings v. State, 123 So. 3d 1101, 1121 (Fla. 2013) (first citing Van Poyck v. State, 961 So. 2d 2 220, 224 (Fla. 2007); and then citing Occhicone v. State, 768 So. 2d 1037, 1041 (Fla. 2000)). Because the postconviction court denied the claim without an evidentiary hearing, this court must first examine the claim "to determine if it is legally sufficient, and if so, whether the record refutes it." See Martin v. State, 205 So. 3d 811, 812 (Fla. 2d DCA 2016) (quoting Allen v. State, 854 So. 2d 1255, 1258 (Fla. 2003)). A claim of ineffective assistance of counsel must show that counsel's performance was deficient and that the deficient performance prejudiced the defendant. Allen, 854 So. 2d at 1261 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Cooper asserted in ground two that his trial counsel had rendered ineffective assistance by failing to retain and call an expert to examine the tire marks left on the road where the collision occurred. Cooper contended that the expert would have testified that the vehicle he had been driving had left tire marks on the road indicating that he had lost control of the vehicle, thus supporting his defense that he hit the victim accidentally. He contended further that the expert would have also testified that certain tire marks, which the State argued incriminated Cooper, had not been left by his vehicle. In support of that contention, he referenced the 3 trial testimony of a crime scene investigator who admitted that there was "no way of telling whether [the marks were] Mr. Cooper's tire marks." Ground two is legally sufficient as it asserts both the substance of the proposed expert testimony and that the testimony would have been helpful to Cooper's defense at trial. See Terrell v. State, 9 So. 3d 1284, 1288 (Fla. 4th DCA 2009) ("A defendant is required to allege what testimony defense counsel could have elicited from witnesses and how defense counsel's failure to call, interview, or present the witnesses who would have so testified prejudiced the case." (citing Nelson v. State, 875 So. 2d 579, 583 (Fla. 2004))); see also Lucas v. State, 147 So. 3d 611, 612 (Fla. 4th DCA 2014) (concluding that postconviction court erred in striking as legally insufficient defendant's claim that counsel had been ineffective in failing to call expert witness because defendant's "motion sufficiently explained the relevance and substance of the expected testimony and alleged that the outcome of the proceedings would have been different"). Expert testimony establishing that Cooper's vehicle had left certain marks on the road indicative of a vehicle losing control would have corroborated his trial testimony 4 that he had lost control of the vehicle. Thus, the expert testimony would have supported Cooper's defense that the collision had been accidental. In summarily denying relief on that ground, the postconviction court noted that Cooper had not identified any expert who would have provided such testimony. Identification of an expert, however, is not necessary to establish a legally sufficient claim that counsel was ineffective for failing to retain and call an expert witness. See State v. Lucas, 183 So. 3d 1027, 1034 (Fla. 2016) ("[W]e cannot hold that a defendant is always required to name a specific expert witness and show that the specific expert witness would have been available to testify at trial in order to render a rule 3.850 motion legally sufficient."); see also Terrell, 9 So. 3d at 1289 ("[W]e are aware of no authority requiring the defendant to provide the name of a particular expert where the defendant claims that trial counsel failed to secure an expert in a named field of expertise."). Moreover, the postconviction court's record attachments— excerpts from the defense's opening statement and from Cooper's own testimony on direct examination—do not conclusively refute Cooper's claim. In summarily denying ground two, the court stated, 5 "The Defendant now faults trial counsel for failing to obtain an expert that could have rebutted the hypothesis . . . that tire marks found on the scene were created by Defendant's vehicle." In the excerpt from the opening statement, defense counsel stated that Cooper had been driving the vehicle; that the vehicle had "had a list of documented mechanical problems"; and that in the moments before the collision, Cooper had been driving too fast and had lost control of the vehicle after attempting to make a sharp turn. In the excerpt from Cooper's direct examination, Cooper testified that he had been driving the vehicle; that the vehicle had gone airborne after he had accidentally hit a curb; and that he had then made a sharp left turn to avoid hitting a pedestrian, losing control of the vehicle and inadvertently hitting the victim. Given the court's statement concerning the substance of Cooper's claim and the nature of the excerpts that the court attached, it appears that the court may have misapprehended the claim, which is that the proposed expert testimony would have supported Cooper's defense that the collision had been accidental—not that Cooper and his vehicle had not been involved in the collision at all. 6 We therefore reverse the postconviction court's order to the extent that it summarily denied relief based on ground two and remand for further proceedings. Cf. Leonard v. State, 930 So. 2d 749 (Fla. 2d DCA 2006) (reversing the summary denial of a claim of ineffective assistance of counsel grounded on a failure to seek expert testimony and concluding that the record attachments to the court's order did not conclusively refute the claim because the court had misapprehended the claim). In doing so, we do not rule out the possibility that portions of the record may conclusively refute Cooper's claim as correctly construed. If not, however, the court shall conduct an evidentiary hearing to determine whether counsel's failure to retain and call an expert to present the proposed testimony fell below an objective standard of reasonableness. See Terrell, 9 So. 3d at 1288 ("A claim of ineffectiveness in failing to present important exculpatory evidence cannot be resolved on the basis of the mere existence of conflicting evidence in the record. 'Rather, the record must conclusively rebut the claim if the claim is to be resolved without a hearing.' " (quoting Jacobs v. State, 880 So. 2d 548, 555 (Fla. 2004))). In all other respects, we affirm. 7 Affirmed in part; reversed in part; remanded. SILBERMAN and SMITH, JJ., Concur. Opinion subject to revision prior to official publication. 8