Sage v. State, 2D04-1817.

• Decision Date: 08 July 2005
• Docket Number: No. 2D04-1817.,2D04-1817.
• Citation: 905 So.2d 1039
• Parties: Kevin Raymond SAGE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

905 So.2d 1039

Kevin Raymond SAGE, Appellant, v. STATE of Florida, Appellee.

No. 2D04-1817.

District Court of Appeal of Florida, Second District.

July 8, 2005.

James Marion Moorman, Public Defender, and Anthony C. Musto, Special Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

Kevin Sage appeals a final order denying his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court summarily denied all but one of Mr. Sage's grounds for relief and denied the remaining claim after a short evidentiary hearing. We affirm, without further comment, the summary denial of claims 1(e), 2(f), 2(g), 2(h), 2(j), 2(k), 3, and 4, of Mr. Sage's motions because the claims were either facially insufficient or conclusively refuted by the record.¹ We reverse the summary denial of claims 1(a), 1(b), 1(c) and 1(d) and remand for further proceedings. We also reverse the denial of ground 2(m) after the evidentiary hearing because the inquiry in this matter has recently changed in light of Florida v. Nixon, ___ U.S. ___, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). Finally, we affirm the summary denial of claims 2(i) and 2(l), but because it appears Mr. Sage may be able to state facially sufficient claims for relief on these grounds and the trial court will be conducting continued proceedings on Mr. Sage's claims, he should be provided an opportunity to amend these claims if he can do so in good faith.

Mr. Sage was charged with false imprisonment, robbery, burglary of a conveyance with assault or battery, and carjacking. Although our record is limited, it appears that these charges arose out of an attack on a woman who was leaving Britton Plaza, a shopping plaza in south Tampa with a grocery store and theater that serves a racially diverse community. As she approached her car, the perpetrator forced her into her car and robbed her. She managed to escape from the car and immediately reported the crime to the police. The police detained Mr. Sage because he was found in the vicinity of the crime and fit the victim's rather general description of the perpetrator as a young, African-American male. The police took Mr. Sage to the victim, who identified him as the perpetrator. It does not appear that the identification occurred at a formal line-up.

There were some discrepancies within the victim's story. She claimed that she had engaged in an intense struggle with the perpetrator that would seemingly have left marks on the perpetrator, but Mr. Sage had no marks of such a struggle. Furthermore, none of the items stolen from the victim were recovered. Nevertheless, at his trial in 2001, Mr. Sage's trial counsel employed a strategy of conceding guilt to a lesser offense of attempted robbery but denying that any other crime occurred.

In his motion for postconviction relief, Mr. Sage alleged that he was innocent of the charges, that he did not agree to a strategy of conceding guilt, and that counsel was ineffective for failing to investigate his case in certain aspects in order to present a defense of mistaken identity. In his pro se motion, Mr. Sage divided these allegations into varying "grounds" of ineffective assistance of counsel, namely, grounds 1(a), 1(b), 1(c), 1(d), and 2(m), perhaps contributing to the impression that the grounds could be addressed individually. Thus the trial court summarily denied the claims in grounds 1(a) through (d) that counsel was ineffective for failing to investigate the case, concluding that the lack of investigation had not prejudiced Mr. Sage because his trial strategy had been to concede both his identity and that he was guilty of a lesser crime arising out of the same events. The trial court then ordered an evidentiary hearing to determine whether Mr. Sage consented to the trial strategy of conceding guilt (ground 2(m)), relying on the Florida Supreme Court's decision in Nixon v. State, 758 So.2d 618 (Fla.2000).

At the evidentiary hearing, Mr. Sage's trial counsel testified that Mr. Sage had consented to employing a strategy of conceding guilt to a lesser offense. Mr. Sage denied that he had agreed to this. Counsel did not offer any explanation as to why she decided to employ this strategy rather than a strategy that would not require conceding guilt, such as a mistaken identity defense. Because of a prior conviction, it appears that Mr. Sage's conviction for the lesser offense could still have entailed substantial sentencing consequences, possibly equal in severity to the sentence he ultimately received upon his conviction for the crimes charged. The trial court concluded that Mr. Sage had consented to the strategy of conceding guilt to the lesser offense, and therefore, pursuant to Nixon, 758 So.2d 618, denied the motion for postconviction relief as to ground 2(m).

In Nixon, 758 So.2d 618, the Florida Supreme Court held that a presumption of ineffective assistance of counsel arises when a defendant's trial counsel concedes the defendant's guilt to a crime and that the presumption could be overcome only by evidence that the defendant consented to the strategy. Nixon, 758 So.2d at 624. Recently, however, the United States Supreme Court overruled Nixon. See Florida v. Nixon, ___ U.S. ___, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004)

. The United States Supreme Court rejected the framework set up by the Florida Supreme Court in Nixon, 758 So.2d 618, holding instead that a claim alleging a counsel's deficient performance due to a concession of guilt must meet the standard prescribed in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, the defendant must show that counsel's concession strategy was "unreasonable." See Nixon, 125 S.Ct. at 561-62.

Based upon Nixon, 125 S.Ct. at 561-62, which was issued some months after the evidentiary hearing on Mr. Sage's motion for postconviction...