Thomas v. State, 012221 FLCA2, 2D19-3830

Docket Nº2D19-3830
Opinion JudgeVILLANTI, JUDGE.
Party NameJERRY THOMAS, Appellant, v. STATE OF FLORIDA, Appellee.
AttorneyJerry Thomas, pro se. Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
Judge PanelBLACK and ATKINSON, JJ., Concur.
Case DateJanuary 22, 2021
CourtFlorida Court of Appeals, Second District

JERRY THOMAS, Appellant,

v.

STATE OF FLORIDA, Appellee.

No. 2D19-3830

Florida Court of Appeals, Second District

January 22, 2021

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Charlotte County; George C. Richards, Judge.

Jerry Thomas, pro se.

Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, JUDGE.

Jerry Thomas appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, contending that the postconviction court erred when it denied relief on claims two and four and the second subclaim of claim seven and in failing to rule on the second subclaim of claim eight. Because the record supports the denial of the claims actually ruled upon by the postconviction court, we affirm the denial of those claims without further comment. However, the record supports Thomas's argument that the postconviction court failed to rule on the second subclaim raised in claim eight of his motion. Therefore, we reverse the order to the extent that it summarily denied claim eight and remand for the postconviction court to rule on the subclaim it overlooked.

In claim eight of his motion, Thomas alleged that his trial counsel provided ineffective assistance by failing to object to testimony from two police deputies that they knew Thomas and Thomas's voice from prior drug deals. He also alleged that trial counsel provided ineffective assistance by failing to object to the deputies providing "general criminal behavior testimony based upon a law enforcement officer's observations and experience in the investigation of other cases" and their subsequent testimony that Thomas's behavior was consistent with those general criminal behaviors. In summarily denying this claim as conclusively refuted by the record, the postconviction court stated: In Ground Eight, Defendant alleges that his trial counsel was ineffective for "failure to object to impermissible criminal behavior testimony (leading) to the improper and unjust conviction of the defendant. In the instant case, no CCSO agent actually or visually witnessed any drug transaction between the defendant and the confidential informant. Additionally, no CCSO agent or officer actually or visually witnessed the defendant present at the sale location. The...

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