Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT PETER H. MILLER, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-3204 July 30, 2021 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; William H. Burgess, III, Judge. Peter H. Miller, pro se. SMITH, Judge. Peter Miller challenges the summary denial of his amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We conclude that this amended motion was timely.1 On the merits, we affirm the denial of all but two of Mr. Miller's grounds without further comment. We reverse the summary denial of two grounds, which are facially sufficient and not refuted by the record, and remand for the postconviction court to either attach portions of the record refuting them or to grant Mr. Miller an evidentiary hearing. Mr. Miller was originally charged with capital sexual battery, sexual battery, and lewd or lascivious conduct—all involving the same victim. A series of trials followed, resulting in a mistrial in 2015, a hung jury on two counts and a guilty verdict on the lewd or 1 After his original, timely motion was deemed facially insufficient and stricken with leave to amend, the postconviction court determined that Mr. Miller's amended motion was untimely by one day, but it also addressed each claim in the motion. Mr. Miller's certificate of service shows service to the Office of the State Attorney by use of a prison drop box and should have been deemed timely under the circumstances of this record. See Linville v. State, 260 So. 3d 440, 442–43 (Fla. 5th DCA 2018) (finding an inmate's certificate of service showing use of the prison mail system to serve the State Attorney and Attorney General but not the clerk was timely and sufficient where "the prison is the de facto clerk's office for purposes of this rule," and the sole argument was "that the certificate of service was deficient in not naming the clerk—without citation to or discussion of the applicable filing and service rules and without case citations."); see also Fla. R. Crim. P. 3.850(f)(6); Simmons v. State, 293 So. 3d 604, 606 (Fla. 1st DCA 2020). 2 lascivious count in 2016, and guilty verdicts on the remaining two counts at a third trial in 2016. All of his convictions and sentences were affirmed on appeal. Miller v. State, 242 So. 3d 387 (Fla. 2d DCA 2018) (table decision); Miller v. State, 242 So. 3d 382 (Fla. 2d DCA 2018) (table decision). As identified by the numbering used in the postconviction court's order, parts of grounds three and fifteen are both sufficient and unrefuted by the portions of the record attached to the order denying them. In ground three, Mr. Miller alleged that counsel was ineffective for failing to call a medical expert to counter the testimony from the nurse who examined the victim regarding the lack of conclusive physical findings that the victim had ever engaged in intercourse and her opinion that penetration could have occurred without such physical signs being present. Mr. Miller claimed that this allowed the nurse to provide what amounted to unrebutted testimony that explained away what was otherwise a material fact in dispute at trial. He further claimed that if a defense expert had been presented to counter the nurse's testimony regarding the conclusions to be drawn from the lack of physical evidence of intercourse the jury would have returned not guilty verdicts. 3 A claim "that counsel should have called an expert at trial to counter the nurse's testimony" and to testify "that there would have been physical injury to the victim if there were multiple penetrations over the days as she reported . . . is legally sufficient and warrants further review." See Townsend v. State, 201 So. 3d 716, 718 (Fla. 4th DCA 2016). Mr. Miller was not required to name a specific expert for this type of failure to call a witness claim in order for the claim to be deemed sufficient. His merely stating that any OB/GYN would have been able to testify that during an exam following the nature and frequency of the acts of penetration as described by the victim and for which Mr. Miller was charged, the physical signs of intercourse would be apparent is a legally sufficient claim. See State v. Lucas, 183 So. 3d 1027, 1034 (Fla. 2016). Here, however, there is nothing in the record attached to the postconviction court's order to refute Mr. Miller's claim that his counsel was ineffective for failing to arrange for such expert testimony. We therefore reverse the summary denial of this portion of claim three and remand for the trial court to either hold an evidentiary hearing or attach those portions of the record to refute the claim if it is again summarily denied. 4 Mr. Miller stated in ground fifteen of his motion that the trial court offered his counsel a mistrial during the third trial but counsel refused it and that this constituted ineffective assistance of counsel where, had counsel accepted the mistrial, Mr. Miller would not have been convicted of the two counts he faced at that third trial. Mr. Miller also claimed counsel was ineffective for advising him to waive the mistrial offered by the trial court based upon the detective testifying about certain acts that were excluded from the third trial. According to Mr. Miller, and as supported by excerpts from the trial transcripts, the investigating detective testified about an instance involving a sex act between Mr. Miller and the victim that had been excluded from admission at that trial, the trial court then announced it was ready to declare a mistrial and indicated to defense counsel that it saw no choice but to do so unless the right to one was waived. The postconviction court did not examine the merits of this claim because it denied it by deeming the claim insufficient and conclusory. But Mr. Miller has alleged a sufficient claim, including both deficient performance and prejudice, within his allegations. See Jones v. State, 845 So. 2d 55, 65 (Fla. 2003). Despite Mr. 5 Miller's acknowledgment of counsel's decision to waive the right to a mistrial on the trial record, the record does not refute the claim that his counsel was ineffective in advising him to reject the mistrial offered by the trial court, where it declared on the record that a curative instruction was insufficient and counsel expressed on the record that he thought it would result in a dismissal of the charges and an attachment of jeopardy if a mistrial was declared. Cf. Middleton v. State, 984 So. 2d 522, 522–23 (Fla. 1st DCA 2007) ("If appellant had moved for a mistrial, the trial court would have had to grant the motion under the case law. As such, we remand the case to the trial court to determine whether appellant has demonstrated the requisite prejudice . . . ."). We therefore also reverse the portion of the order summarily denying this claim and remand it to the postconviction court for further consideration. We recognize that the decision to waive the offered mistrial might be based on strategy not apparent within the limited record on appeal, which might overcome Mr. Miller's claim of ineffectiveness. However, that is likely a determination that the postconviction court could make only following an evidentiary hearing. See, e.g., Maharaj v. State, 778 So. 2d 944, 951 (Fla. 2000) (indicating that 6 counsel's testimony at an evidentiary hearing regarding the trial strategy behind advice to reject a mistrial and that such testimony, if unrebutted, might overcome a postconviction claim of ineffectiveness for that alleged misadvice); see also Jackson v. State, 975 So. 2d 485, 486 (Fla. 2d DCA 2007). At the very least, however, the postconviction court must examine the merits of the claim on remand and attach those portions of the record that refute it, if summary denial is appropriate. Affirmed in part, reversed in part, remanded. CASANUEVA and SILBERMAN, JJ., Concur. Opinion subject to revision prior to official publication. 7