                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA
                                     NOT FINAL UNTIL TIME EXPIRES TO
MICHAEL J. GILES,                    FILE MOTION FOR REHEARING AND
                                     DISPOSITION THEREOF IF FILED
      Appellant,
                                     CASE NO. 1D16-2665
v.

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed November 20, 2017.

An appeal from the Circuit Court for Leon County.
James O. Shelfer, Judge.

Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort Lauderdale
and William M. Kent of the Law Office of William Mallory Kent, Jacksonville, for
Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Appellant Michael J. Giles challenges the denial of his motion for

postconviction relief alleging several grounds of ineffective assistance of trial
counsel. The only claim at issue in this appeal is that counsel was ineffective for

advising Appellant not to testify, despite the court’s offer to allow him to do so, after

the court permitted the State to introduce as rebuttal a recorded interview of

Appellant that contradicted his defense at trial. We affirm.

      Appellant was convicted of aggravated battery with a deadly weapon in

connection with his involvement in an early-morning brawl that erupted between

rival college fraternities. The jury found that, during the commission of the offense,

Appellant discharged a firearm and caused great bodily harm. At trial, Appellant’s

sole defense was self-defense (i.e., he admitted to discharging his firearm but did so

in self-defense). In a recorded interview with police after his arrest, Appellant denied

any involvement in the incident. Until the State’s rebuttal, the video of the interview

had not been admitted into evidence, and Appellant, with advice of counsel, had not

testified. After one of Appellant’s witnesses testified that Appellant had been

attacked without provocation, the court agreed to allow the State to call a rebuttal

witness and to introduce, through her testimony, Appellant’s recorded interview into

evidence.

      The court announced that it would not permit surrebuttal, but it would allow

Appellant to take the stand before the recorded interview was played for the jury if

he had changed his mind about not testifying. The court explained, however, that




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“we have got to do this now,” because it would not be fair to the State to allow

Appellant to have “the final word.”

      The court asked defense counsel, “Do you want to talk to [Appellant] and see

if he’s changed his mind about testifying?” Counsel responded, “Yes, sir. . . . May I

step out with [Appellant]?” The court denied counsel’s request to speak with

Appellant and stated “[n]o. We need to do it quickly.” Counsel then asked if

Appellant’s father could come forward, presumably to speak with Appellant. The

court again denied counsel’s request, saying “[n]o. Let’s get this done.” After a brief

pause, counsel tried again, asking, “Judge, would the Court give him permission to

notify the Court after the State presents their rebuttal?” Yet again, the trial court

denied the request, stating “I’m not going to allow him to do it then. Like I say, if

you want to call him as a witness, you call him now.” Defense counsel represented

to the court that Appellant was going to maintain his right to remain silent. The court

asked Appellant if he agreed, and Appellant replied, “Yes, sir.”

      To maintain a claim for ineffective assistance of counsel, a defendant must

show that counsel’s performance was deficient and that the deficiency was

prejudicial to the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To

meet the deficiency prong, the defendant must show that counsel’s representation

“fell below an objective standard of reasonableness” by committing “errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant

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by the Sixth Amendment.” Id. at 687-88; Johnson v. State, 104 So. 3d 1010, 1021

(Fla. 2012).

      The postconviction court did not err in denying Appellant’s claim that counsel

was ineffective for advising Appellant not to testify. Defense counsel’s testimony

during the postconviction hearing, which is supported by the trial transcript, was that

he did not give any advice to Appellant because there was no time to do so. Indeed,

that is how Appellant now frames the issue on appeal. On appeal, Appellant argues

that counsel’s failure to demand that the trial court give Appellant more time to

consult with his family and counsel constitutes ineffective assistance of counsel. The

record refutes Appellant’s claim. Counsel asked the trial court multiple times for

additional time, far from the dissent’s characterization of counsel as a “potted plant.”

And contrary to the dissent’s position that counsel had a duty to make a formal

objection, counsel is not ineffective for failing to make futile objections. Hartley v.

State, 206 So. 3d 836, 838 (Fla. 1st DCA 2016) (“It is well settled that counsel is not

required to make futile objections or motions.”). To the extent that it may have been

error for the trial court to deny defense counsel’s requests, putting unnecessary

pressure on Appellant to make an immediate decision as to whether he would testify,

the issue should have been raised on direct appeal.




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      Because we conclude that Appellant failed to show that counsel’s

representation fell below an objective standard of reasonableness, we affirm the trial

court’s order denying Appellant’s motion for postconviction relief.

WETHERELL and RAY, JJ., CONCUR; MAKAR, J., DISSENTS WITH

OPINION.




                                          5
MAKAR, J., dissenting.
      At the most critical moment in his trial, Michael L. Giles received no advice

from his attorney. In this post-conviction case, his trial counsel all but admits his

representation was inadequate, abdicating the most crucial decision in the trial to an

uninformed client, and deficiently protecting Giles’s right to testify in his defense.

      Three charges of attempted second-degree murder against Giles stemmed

from a fraternity fracas outside a Tallahassee nightclub during which Giles was

severely attacked, resulting in him shooting his assailant. Giles’s entire defense was

self-defense. Giles, a twenty-five-year-old active duty airman with service in

Kuwait, Iraq, and Japan, had a clean record at the time of the incident. After the

shooting, he told his arresting officer on a videotape that he had nothing to do with

the shooting, which was untrue. Mid-trial, when the judge ruled that the videotape

would be played to the jury, Giles’s counsel—rather than competently asserting

Giles’s right to make an informed decision by consulting with him about whether to

exercise his constitutional right to testify in his defense—allowed his client to make

a split-second, uninformed decision on his own. Yes, the trial judge applied undue

pressure to force an immediate decision and defense counsel’s request to speak with

Giles was denied. But defense counsel’s duty was not to be a potted plant at this

decisive moment; more than submissive acquiescence in the unfolding

circumstances and the trial judge’s perfunctory denial was required. Rather than


                                           6
registering an objection, counsel instead ratified his client’s uninformed decision

without protestation. His clear duty was to make a formal objection, explaining that

at this obviously critical juncture in the trial he was obligated to discuss with his

client whether to exercise the constitutional right to testify, short of which his

counsel would be woefully deficient. As was evident at the time, without Giles’s

trial testimony as a counter-punch, playing the videotape at trial would be “seismic”

and a “game changer” for his client, which turned out to be true: the jury deadlocked

and had to be pressed to try again via an Allen charge.1 It ultimately reached a

compromise verdict, finding Giles guilty on a lesser-included offense of aggravated

battery and not guilty as to the two others, which nonetheless resulted in a twenty-

five-year minimum mandatory sentence that even the seasoned trial judge said was

“overly harsh on the facts of this case.”

        Had Giles testified, there is a reasonable probability that the outcome would

have been different. Strickland v. Washington, 466 U.S. 668, 695 (1984) (“When a

defendant challenges a conviction, the question is whether there is a reasonable

probability that, absent the errors, the factfinder would have had a reasonable doubt

respecting guilt.”). Giles, having established his trial counsel provided inadequate

representation and a reasonable probability that his testimony would have

heightened the already-existing doubt about his guilt, is entitled to relief.


1
    Allen v. United States, 164 U.S. 492 (1896).
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