Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-3152 _____________________________ SHANNON FORD, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Bradford County. Mark W. Moseley, Judge. March 15, 2021 PER CURIAM. Appellant, Shannon Ford, appeals a final order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant entered an open plea of no contest to four counts of willful and wanton reckless driving with serious bodily injury. The charges arose from an incident where Appellant’s semi-truck crashed into a school bus, injuring four people. The trial court adjudicated Appellant guilty and sentenced him to consecutive terms of five years in prison on each count, for a total sentence of twenty years. In his postconviction motion, Appellant makes several claims of ineffective assistance of trial counsel. We write briefly to address Appellant’s claim that his trial counsel was ineffective for failing to call his employer, the owner of the truck, to testify at his sentencing hearing. In his postconviction motion, Appellant asserted that the owner would have testified to the truck’s history of inspection violations and that he told Appellant the truck had recently been repaired and was safe to drive. The postconviction court denied Appellant’s motion without an evidentiary hearing. To uphold the postconviction court’s summary denial of Appellant’s claim the record must “conclusively demonstrate that [Appellant] is not entitled to relief.” Hutchinson v. State, 17 So. 3d 696, 700 (Fla. 2009). Because no evidentiary hearing was held, “we must accept [Appellant’s] factual allegations as true to the extent they are not refuted by the record.” Occhicone v. State, 768 So. 2d 1037, 1041 (Fla. 2000). But Appellant still bears the burden of establishing “a prima facie case based on a legally valid claim; mere conclusory allegations are insufficient.” Franqui v. State, 59 So. 3d 82, 95 (Fla. 2011). To prove a legally valid claim of ineffective assistance of counsel, Appellant must show (1) counsel’s performance was deficient such that their representation fell below a reasonable standard of prevailing professional norms, and (2) there was a reasonable probability Appellant’s case was prejudiced by the representation such that the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 690–94 (1984). And under the prejudice prong, Appellant must demonstrate a likelihood of a different result which is substantial, not just conceivable. Harrington v. Richter, 562 U.S. 86, 112 (2011). Assuming arguendo that it was deficient for counsel not to call the owner of the semi-truck to testify, Appellant has not met his burden of demonstrating that the absence of such testimony resulted in prejudice. There was alternative testimony presented at the sentencing hearing that sufficiently demonstrated the truck needed repairs, that it was the owner’s responsibility to repair the truck, and that Appellant believed the truck had been repaired. Thus, the testimony that the motion claims the owner would have 2 provided was substantially similar to the testimony the trial court considered before imposing the sentence. Therefore, the postconviction court was correct in finding that the record conclusively refutes Appellant’s claim that he was prejudiced by trial counsel’s decision not to introduce the truck owner testimony during the sentencing hearing. Accordingly, we affirm the court’s denial of Appellant’s postconviction claim. AFFIRMED. BILBREY, NORDBY, and LONG, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Deana K. Marshall of the Law Office of Deana K. Marshall, P.A., Riverview, for Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee. 3