Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT EVERETTE PEARSON, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D22-3262 May 24, 2023 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Manatee County; Lon Arend, Judge. Everette Pearson, pro se. VILLANTI, Judge. Everette Pearson appeals the order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.850. In his motion, Pearson presented six grounds for relief, some of which contained multiple subparts. We affirm the order denying Pearson's postconviction motion except for the denial of subpart four of ground four of Pearson's motion because the portions of the record attached to the order do not conclusively refute that claim. In the relevant portion of ground four, Pearson argued that his trial counsel was ineffective for failing to object to certain statements made by the prosecutor during closing argument, which he asserts constituted improper bolstering.1 Specifically, Pearson argued: The prosecutor [stated], "Members of the jury, that in and of itself shows you she's telling the truth. This happened. She was being sexually abused by this man. . . . All the evidence points to the victim telling you the truth. . . . This happened. This happened beyond a reasonable doubt. . . . Exactly what she said. . . . [Y]ou go through those four elements and you agree [sic] that he's guilty beyond a reasonable doubt. During rebuttal, the State further bolstered the testimony of [the victim] asking the jury, "So she's going to make it up? . . . [S]he's lying about it? . . . ([S]he went through) all of that because why? Because Everett Pearson raped her. That's why. . . . [A]ll of that over the past [eleven] months, and it’s a lie?" The postconviction court found that these comments did not constitute improper bolstering of the victim's testimony because they were made in the context of the prosecutor referring to or analyzing the evidence, see Miller v. State, 926 So. 2d 1243, 1254-55 (Fla. 2006) ("[A]n attorney is allowed to argue reasonable inferences from the evidence and to argue credibility of witnesses or any other relevant issue so long as the argument is based on the evidence." (citing Craig v. State, 510 So. 2d 857-865 (Fla. 1987))), and because they did not refer to evidence outside the record, see Jackson v. State, 89 So. 3d 1011, 1018 (Fla 4th DCA 2012) ("Improper prosecutorial 'vouching' for the credibility of a witness occurs 'where a prosecutor suggests that she has reasons to believe a witness that were not presented to the jury,' or, stated differently, where 1 See Martinez v. State, 761 So. 2d 1074, 1081 (Fla. 2000) ("[P]rosecutors may not directly or indirectly express their opinions as to the credibility of witnesses or the guilt of the defendant."). 2 the prosecutor 'implicitly refers to information outside the record.' " (quoting United States v. Rivas, 492 F.3d 131, 137 (3d Cir. 2007))). However, the court did not elaborate on how the comments were based on the evidence, and the pages of the trial transcript it attached to its order do not include the quoted comments or conclusively refute Pearson's allegations that the comments constitute improper bolstering and that trial counsel was ineffective for failing to object to them. Accordingly, we reverse the portion of the postconviction court's order denying this claim of ground four and remand for the postconviction court to either attach portions of the record refuting the claim or hold an evidentiary hearing. Affirmed in part, reversed in part, and remanded. LaROSE, J., Concurs. LUCAS, J., Concurs in result only. Opinion subject to revision prior to official publication. 3