Jones v. State, 98-2921.

• Decision Date: 03 November 1999
• Docket Number: No. 98-2921.,98-2921.
• Citation: 747 So.2d 982
• Parties: Lloyd M. JONES, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

747 So.2d 982

Lloyd M. JONES, Appellant, v. The STATE of Florida, Appellee.

No. 98-2921.

District Court of Appeal of Florida, Third District.

November 3, 1999.

Lloyd M. Jones, in proper person.

Robert A. Butterworth, Attorney General, and Mark Rosenblatt, Assistant Attorney General, for appellee.

Before COPE, LEVY and GREEN, JJ.

PER CURIAM.

The appellant, Lloyd M. Jones, appeals an order denying his motion for postconviction relief made pursuant to Florida Rules of Criminal Procedure rule 3.850. After reviewing the record on appeal, we find that the record conclusively establishes that the appellant is entitled to no postconviction relief. Consequently, we affirm the trial court's summary denial of his motion without an evidentiary hearing.

The appellant was charged with and convicted of burglary of an unoccupied conveyance. Simply stated, he was charged with breaking into the victim's car and stealing a toolbox. His defense was misidentification. The case proceeded to trial by jury where the victim, Stirling Baker, testified that on the date in question, he had fallen asleep in his home in the afternoon hours, and was awakened to the sounds of breaking glass outside of his home. When Baker looked out of the window, he saw that the driver's side window to his car had been shattered and saw the appellant, whom he recognized from the neighborhood, running away with his (Baker's) toolbox. Baker initially yelled out at the appellant and later decided to pursue the appellant in his automobile. After his efforts to locate the appellant were unsuccessful, Baker returned to his home. He testified that it was "late" when he decided to call the police.

Police Officer Luis Fernandez then testified that he responded to the victim's call at about 3:55 a.m. and it was his understanding that the crime had been committed a short time before his arrival.¹ After the victim gave him a description of the appellant, he and another police officer canvassed the neighborhood. Some individuals in the neighborhood informed them where the appellant might be located and the police proceeded to that location. Upon their arrival, they arrested the appellant and administered Miranda warnings.² Officer Fernandez testified that after the Miranda warnings were administered, the appellant offered to return the toolbox to the victim the following day.³

The dissent suggests that the only reason the appellant made this offer was because he was intimidated or afraid of the officers who entered his home, with guns drawn, at 3:00 a.m. Dissenting opinion at 986. However, after the appellant made the offer, the officer transported the appellant to the victim's home where the victim made a positive identification. While at the victim's home, on his own accord and without any prodding by the officers, the appellant offered to return the toolbox if the victim agreed not to press charges. The victim declined this offer.⁴ Thus, the dissent's suggestion of intimidation or fear is mooted by the appellant's voluntary offer to the victim.

We pause to address yet another point raised in the dissent. The dissenting judge states that he is "very troubled at the discrepancy between the victim's testimony and the officer's testimony regarding the time of day." Dissenting opinion at 987. While in some cases discrepancies in testimony concerning the time in which a crime occurred could be relevant, here however, in light of the appellant's admissions, such discrepancies are of no consequence. Indeed, the appellant told the arresting officer that he would return the victim's tool box in the morning, see supra note 3, and also, the appellant attempted to return the victim's tool box to in exchange for the victim not filing criminal charges, see supra note 4. Thus, the we conclude that the victim's and the arresting officer's discrepancies in time, is of no moment when weighed against the appellant's post-arrest admissions.

After the state rested, the appellant took the stand to testify on his own behalf. Although he denied burglarizing the victim's car and stealing the toolbox, he acknowledged that after his arrest, he offered to return the toolbox to the victim. The defense rested. The jury returned a guilty verdict and the appellant was sentenced as a violent career criminal pursuant to section 775.084, Florida Statutes (1995). His direct appeal of his conviction to this court was affirmed per curiam. See Jones v. State, 717 So.2d 1025 (Fla. 3d DCA 1996).

The appellant then filed the instant postconviction motion and raised two claims. First, he argued that his trial court counsel was ineffective for failing to investigate and call two witnesses at trial, namely, Robin Chimilio and Johnny Morell. Both witnesses would allegedly have provided exculpatory evidence on his behalf. In his motion, the appellant acknowledges that his trial court counsel declined to call Ms. Chimilio to the stand because of her past criminal record. He further states in his motion that Mr. Morell, now deceased, was not called to the stand but was available during the trial. According to the appellant, Morel was not called because his defense counsel had not had an opportunity to interview him prior to trial.

In support of his motion, the appellant attached two affidavits, one from Ms. Chimilio and one from his brother, Johnny Miller, who had purportedly spoken to Mr. Morell prior to the latter's death. According to Ms. Chimilio's affidavit, she gave a pretrial deposition in this case and explained that the appellant was her live-in boyfriend. Further, she averred that the appellant had been with her continually from 5:00 in the afternoon on the date of the crime until approximately 4:30-5:00 the next morning when the police arrived at their residence to arrest him.

According to Mr. Miller's affidavit, he had had a conversation with Mr. Morell prior to Mr. Morell's death about the incident. Mr. Miller averred that Mr. Morell had stated that the victim's version of events surrounding the stealing of the toolbox "was a lie." According to Mr. Miller, Mr. Morell, if called, would have testified as follows: At about 2:30 a.m. on the day of the incident, Mr. Morell was walking past the victim's residence and noticed that the victim's car window was shattered. Mr. Morell notified the victim and the victim noticed that his toolbox was missing from the car. Thereafter, the victim and Mr. Morell drove around the neighborhood in an effort to locate the perpetrator. When they could not find the thief, the victim decided to call the police. Mr. Morell did not want to talk to the police so the victim drove Mr. Morell home before the police were called.

Given the trial testimony of the state's witnesses as well as the appellant's own testimony that he offered to return the stolen toolbox to the victim, it is abundantly clear that the appellant cannot meet his burden under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), of demonstrating that the outcome of this trial would have likely been different if his defense counsel would have called Mr. Morell and Mr. Chimilio to the stand during the trial. First of all, even if Mr. Morell was still alive to testify, his proposed testimony would not have exculpated the appellant. Neither, the supposed alibi testimony by Ms. Chimilio nor Mr. Morell's alleged impeachment testimony would have overcome the appellant's own post-Miranda offer to return the stolen toolbox to the victim. Clearly then, the defense counsel's decision not to call these witnesses can only be characterized as sound trial strategy, not ineffective assistance of counsel. See Cooley v. State, 642 So.2d 108-09 (Fla. 3d DCA 1994)

(failure to call witnesses not ineffective assistance when there is ample evidence contradicting the proposed testimony of the witnesses); Gonzalez v. State, 579 So.2d 145, 146 (Fla. 3d DCA 1991) (tactical or strategic decision of counsel does not justify postconviction relief on the grounds of ineffective assistance of counsel even if the strategic decision ultimately turns out to be a bad decision). For these reasons, we affirm the summary denial of the motion for postconviction relief.

In the appellant's second point of error, he proffers that the violent career criminal statute under which he was sentenced, see sections 775.084(1)(c),(4)(c), Florida Statutes (1995), is unconstitutional because it violates the single subject rule of article III, section 6, of the Florida Constitution. We have previously held, however, that this statute does not violate the single subject rule and is therefore, constitutional. See Higgs v. State, 695 So.2d 872 (Fla. 3d DCA 1997)

; but see Thompson v. State, 708 So.2d 315 (Fla. 2d DCA),

review granted, 717 So.2d 538 (Fla.1998)(holding that this statute is unconstitutional because it violates the single subject rule). We do certify conflict, however, with Thompson.

Affirmed; conflict certified.

LEVY and GREEN, JJ., concur.

COPE, J., concurs in part and dissents in part.

GREEN, J. (specially concurring in part).

I fully agree with the affirmance of the summary denial of the appellant's conviction, but write separately to address the appellant's sentence for burglary of an unoccupied conveyance entered pursuant to the "Officer Evelyn Gort and All Fallen Officers Career Criminal Act of 1995," Chapter 95-182, Laws of Florida. As I have previously written in my special concurring opinions in Williams v. State, 731 So.2d 99 (Fla. 3d DCA 1999); Valdes v. State, 728 So.2d 1225 (Fla. 3d DCA 1999); John v. State, 724 So.2d 708 (Fla. 3d DCA 1999); English v. State, 721 So.2d 1250 (Fla. 3d DCA 1998); and Elliard v. State, 714 So.2d 1218 (Fla. 3d DCA), review granted, 728 So.2d 201 (Fla.1998), I believe that this act, as written, is unconstitutional because it violates the single subject requirement of article III, section 5 of the Florida Constitution for the reasons set forth in the Second District...