           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                 _____________________________

                         No. 1D17-1381
                 _____________________________

ROBERT A. KOROLY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Escambia County.
Thomas V. Dannheisser, Judge.

                         August 16, 2018


ROWE, J.

     After consuming fourteen beers, Robert Koroly drove the
wrong way on Interstate 110 colliding head-on with a vehicle
driven by Johnny Robinson. Within seconds, a third vehicle driven
by Clarence Jordan struck Robinson’s vehicle. The crash left
Jordan with serious injuries, and Robinson died as a result of the
injuries he sustained in the crash.

     Koroly was charged with DUI manslaughter and DUI with
serious bodily injury. Koroly elected not to go to trial and entered
a plea. He was sentenced to 13.25 years’ imprisonment followed
by 6.75 years’ probation.
     After serving four years of his sentence, Koroly sought to
withdraw his plea on grounds that his counsel was ineffective for
failing to retain an accident reconstruction expert to evaluate the
road conditions that existed at the time of the crash. Koroly
argued that had his counsel retained an expert, the expert would
have discovered defective signage on the interstate and hazardous
weather conditions, both of which could have contributed to the
crash. Under those circumstances, Koroly asserts that he would
not have entered a plea. The trial court denied Koroly’s motion,
concluding that counsel’s performance was not deficient. We agree
and affirm.

                              I. Facts

     Koroly was a commissioned officer in the United States Navy.
He had served nearly eight years as a naval aviator, with the last
few years of his military career as a flight instructor stationed at
the Naval Air Station in Pensacola, Florida. The record is replete
with references to Koroly’s achievements and honorable service to
his country. Numerous letters offered at sentencing by Koroly’s
family, friends, and colleagues recount Koroly’s past
accomplishments and future potential.

                           a. The crash

    On April 30, 2010, Koroly celebrated one aspect of that future.
He planned to move in with his soon-to-be fiancé and her children.
Koroly and his friends visited multiple bars that evening in
downtown Pensacola. The celebration lasted into the early
morning hours of May 1, 2010.

     Sometime before 5:42 a.m., the celebration ended. It is
unknown what time Koroly left downtown Pensacola or why he got
behind the wheel of his SUV. There is no evidence of where he was
headed or how he came to be driving the wrong way on the
interstate. What is known is this: with a blood alcohol level of
over twice the legal limit, Koroly entered a southbound exit ramp
on Interstate 110 and drove at least 1,700 feet in the wrong
direction before colliding head-on with 54-year-old Johnny
Robinson. Robinson, a single father of four, was traveling home
from work to his home in Navarre, Florida. Robinson and Koroly’s

                                 2
vehicles spun out of control before coming to a stop in the center
lane of the highway. Within seconds, 25-year-old Clarence Jordan
struck the right side of Robinson’s vehicle.

     The force of the impact trapped Koroly inside his SUV. When
officers arrived, Robinson was unconscious. Jordan was found
lying on the ground next to his driver’s side door. He had
attempted to exit his car and help Robinson and Koroly, but he fell
due to his right hip being dislocated in the crash.

    An eyewitness told officers that Koroly’s vehicle came out of
nowhere and had been traveling in the wrong direction. The
witness, who had pulled over to help the victims, observed that
Koroly was “out of it.” In the ambulance, two emergency
responders overheard Koroly admit to drinking fourteen beers.
The officers noticed Koroly’s eyes were bloodshot and his speech
was slurred.

     Koroly initially denied being the driver of the SUV. After the
officers asked him if he was a member of the military, Koroly
changed his story and admitted that he had been driving and could
not remember what happened.             He cooperated with law
enforcement in their investigation by consenting to a blood draw
at the hospital. The tests revealed Koroly’s blood alcohol content
was .166.

     Johnny Robinson was pronounced dead at Baptist Hospital
from the injuries he sustained in the crash. Clarence Jordan
suffered from a broken hand, four broken fingers, a gash on his
right leg, and a dislocated hip. He required eight days of
hospitalization and underwent hip surgery, followed by extensive
physical therapy. Koroly was charged with DUI manslaughter for
the death of Robinson. He was charged with DUI with serious
bodily injury for causing Jordan’s injuries.

                       b. Retaining counsel

     Koroly’s parents retained defense attorney Clinton Couch to
defend Koroly. The Korolys were intimately involved with the
case. Residents of Philadelphia, Mr. and Mrs. Koroly flew to
Florida at least four times during a nine-month period to meet with

                                3
Couch about Koroly’s defense. They often prepared written
questions for Couch. They wanted to understand the gravity of the
charges and what sentence Koroly could be facing.

     Early in Couch’s representation of Koroly, the Korolys
discussed with Couch the possibility of retaining an accident
reconstruction expert. According to Mr. Koroly, the Korolys had
family friends who were defense attorneys in Philadelphia; those
friends stressed to the Korolys that obtaining an accident
reconstruction report should be their top priority. Such a report
could help explain the cause of the crash. The Korolys conveyed
this information to Couch. They asked him to research whether
there had been a history of traffic problems near and around the
crash site. They also sought information on the road signage,
hoping to uncover an alternative cause of the crash unrelated to
Koroly’s intoxication. During every conversation, whether in
person or via telephone, the Korolys asked Couch about the
reconstruction expert and whether one could be retained. Money
was not an issue. Couch’s response was always that he would look
into the road signage issues, but the accident reconstruction expert
would have to wait until there was a plea offer or trial.

     At some point, Couch did contact an accident reconstruction
expert, Christopher Bloomberg. According to Couch, he sent
Bloomberg a copy of the traffic homicide report and photographs of
the scene of the crash. He asked Bloomberg to conduct a
“preliminary evaluation” to see if there was anything in the
documents that raised “any red flags.” Bloomberg, according to
Couch, reviewed the documents and determined there was nothing
that would justify a more comprehensive accident reconstruction.

     Following this communication, Couch did not retain
Bloomberg, or any other expert to perform a more comprehensive
accident reconstruction. He never told the Korolys that he
consulted with Bloomberg; instead, he told them that an accident
reconstruction report would not help Koroly’s case and suggested
Koroly enter a plea.




                                 4
                      c. Plea and sentencing

     On advice from Couch, Koroly entered a straight-up plea. At
sentencing, Koroly and his family offered emotional apologies to
the Robinson family and to Clarence Jordan. Koroly accepted full
responsibility for “his negligent behavior” and anticipated a period
of imprisonment. Koroly admitted that he was solely responsible
and that he would never forgive himself for his poor judgment on
the morning of the crash. He revealed that he had successfully
completed a twelve-step program with a promise to never consume
alcohol again. Koroly vowed to turn the Robinson family’s tragedy
into a life-long mission by joining the movement against drinking
and driving. He wanted to help other members of the military who
may be unknowingly suffering from alcoholism. After completion
of his sentence, Koroly planned to start a military program to
reinforce the dangers of drunk driving.

    On March 24, 2011, the court sentenced Koroly to the
minimum sentence allowable under the Criminal Punishment
Code. For DUI manslaughter, a second-degree felony punishable
by up to 15 years’ imprisonment, Koroly was sentenced to 13.25
years’ imprisonment followed by 1.75 years’ probation. For DUI
with serious bodily injury, a third-degree felony punishable by up
to 5 years’ imprisonment, Koroly was sentenced to 5 years’
probation.

                     d. Postconviction motion

     After serving two years of his sentence, Koroly retained
mechanical engineer Donald Fournier to conduct a comprehensive
accident reconstruction analysis of the crash. Fournier examined
the traffic homicide report and the crash scene photos. He also
visited the scene of the accident and attempted to identify Koroly’s
travel pattern. Fournier uncovered four plausible routes Koroly
could have driven from downtown Pensacola to a southbound
Interstate 110 exit ramp. He concluded that the roads were
deficiently signed, marked, and painted, and that the weather
conditions on the morning of the crash were foggy and dark. It was
his opinion that as configured, the roadway geometry and signage
would actively mislead a driver unfamiliar with the area to enter


                                 5
the southbound exit and that any driver could have found
themselves going the wrong way on southbound Interstate 110.

     Based on Fournier’s findings, Koroly filed a postconviction
motion alleging Couch was ineffective for failing to retain an
accident reconstruction expert. Had Couch retained an expert,
Koroly argued, the deficiencies in the road signage would have
been discovered and Koroly would have elected to go to trial.

     At the evidentiary hearing on the motion, Couch, Fournier,
and Bloomberg testified. Board certified criminal defense attorney
Michael Kessler and Koroly’s father, Robert Koroly, Sr., also
testified. Fournier estimated the distance Koroly drove the wrong
way on Interstate 110 was between 1,700 feet (the length of at least
five football fields) and two miles. Fournier admitted that he had
not taken into account Koroly’s blood alcohol level of .166.

      Bloomberg, the expert who had been contacted by Couch,
recalled speaking to Couch on the phone but could not remember
the specific content of their conversation. Bloomberg testified that
Couch hired him to “essentially evaluate some materials that were
sent in.” He performed a preliminary review in order to determine
what else would be needed to complete a more comprehensive
evaluation and analysis. Following their initial contact, Couch
never directed Bloomberg to do anything additional with Koroly’s
file, and Bloomberg never heard from Couch again. In preparation
for his testimony at the postconviction hearing, Bloomberg
reviewed Fournier’s report. Bloomberg testified that he would
have been able to produce a similar reconstruction analysis. But
on cross-examination, Bloomberg acknowledged that Koroly’s
blood alcohol level would have been an issue.

     Couch’s testimony at the hearing contradicted Bloomberg’s
testimony in some respects. Couch stated that he retained
Bloomberg to conduct a preliminary investigation to see if there
were any anomalies in the traffic homicide report and photographs
that would justify a more comprehensive accident reconstruction.
He recalled that after Bloomberg’s review of the documents,
Bloomberg gave him the impression that there was nothing in the
records that would warrant a more comprehensive reconstruction.
Relying on Bloomberg’s opinion, Couch went to the Korolys and

                                 6
told them that an accident investigation would not improve
Koroly’s circumstances. Couch added that if he had ignored
Bloomberg’s preliminary opinion and retained an expert for a more
comprehensive accident reconstruction, he would not have been
acting as a good steward of Koroly’s funds and could have risked
creating a compelling expert witness for the State.

     The trial court denied Koroly’s motion for postconviction
relief, finding Couch’s performance was not deficient. The court
determined that Couch had retained Bloomberg for the purpose of
conducting a preliminary investigation and then made a strategic
decision not to go forward with a more comprehensive accident
reconstruction after Bloomberg’s initial review. In so finding, the
court also noted that “[n]o expert witness could alter the fact” that
Koroly’s operation of a motor vehicle while under the influence
caused or contributed to the accident. This appeal followed.

                            II. Analysis

     A claim of ineffective assistance of counsel is governed by
Strickland v. Washington, 466 U.S. 668 (1984).             To prove
ineffective assistance, an appellant must allege: 1) the specific acts
or omissions of counsel which fell below a standard of
reasonableness under prevailing professional norms, see id. at 690;
and 2) that the appellant’s case was prejudiced by these acts or
omissions such that the outcome of the case would have been
different, see id. at 692. The appellant must make a sufficient
showing of both deficient performance and prejudice in order to
obtain postconviction relief. See id. at 697; Valle v. Moore, 837 So.
2d 905, 910-11 (Fla. 2002). To prove the first prong, the appellant
must “identify the acts or omissions of counsel that are alleged not
to have been the result of reasonable professional judgment.”
Strickland, 466 U.S. at 690; Johnston v. State, 70 So. 3d 472, 477
(Fla. 2011). “A reviewing court must then, in light of all the
circumstances, determine whether the identified acts or omissions
were outside the wide range of professionally competent
assistance.” Johnston, 70 So. 3d at 477 (internal quotations
omitted). The prejudice prong requires that the appellant
demonstrate a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different. See
Strickland, 466 U.S. at 694. “A reasonable probability is a

                                  7
probability sufficient to undermine confidence in the outcome.” Id.
Thus, the appellant must demonstrate a likelihood of a different
result which is substantial and not just conceivable. Harrington
v. Richter, 562 U.S. 86, 112 (2011).

                     a. Deficient Performance

     In evaluating whether an attorney’s conduct is deficient,
counsel’s errors must be “so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687; see also Bradley v.
State, 33 So. 3d 664, 671 (Fla. 2010). The defendant “bears the
burden of proving that counsel’s representation was unreasonable
under prevailing professional norms and that the challenged
action was not sound strategy.” Brown v. State, 755 So. 2d 616,
628 (Fla. 2000) (citing Strickland, 466 U.S. at 688-89); Long v.
State, 118 So. 3d 798, 803 (Fla. 2013); Occhicone v. State, 768 So.
2d 1037, 1048 (Fla. 2000). Courts perform a “context-dependent
consideration” and analysis of counsel’s conduct to determine
whether counsel’s decisions were “reasonable” under the
circumstances at the time of the alleged deficient performance.
Wiggins v. Smith, 539 U.S. 510, 523 (2003) (quoting Strickland,
466 U.S. at 688-89); Williams v. Taylor, 529 U.S. 362, 391 (2000)
(noting the Strickland test “of necessity requires a case-by-case
examination of the evidence”).

     Koroly asserts that Couch’s decision not to retain an expert to
conduct a more comprehensive accident reconstruction was
unreasonable under prevailing professional norms, focusing on
two reasons Couch provided for his decision. Koroly asserts that
Couch’s desire to be a good steward of Koroly’s funds and to avoid
creating an expert witness for the State could not be considered
reasonable strategy. However, Koroly fails to address Couch’s
primary, most significant reason for deciding against obtaining an
expert report: His reliance on Bloomberg’s preliminary, expert
opinion that the circumstances of Koroly’s crash did not warrant a
more comprehensive accident reconstruction analysis. Couch had
no reason to disbelieve or challenge Bloomberg’s expert opinion.
While Couch and Bloomberg recounted different versions of their
telephone conversation, the trial court found Couch’s testimony
more credible. Wait v. State, 212 So. 3d 1082, 1085 (Fla. 1st DCA

                                 8
2017) (“This Court will not substitute its judgment for that of the
trial court on questions of fact, the credibility of the witnesses, and
the weight given to the evidence.”). After examining the damaging
evidence against Koroly, including Koroly’s admission and blood
alcohol level as well as the circumstances surrounding a plea
compared to a loss at trial, Couch decided against requesting that
Bloomberg provide a more comprehensive accident reconstruction
report. While he could have requested such a report, we find
Couch’s decision not to was reasonable given the circumstances.
See Wiggins, 539 U.S. at 523; Strickland, 466 U.S. at 690-91
(“[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable; .
. . counsel has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations
unnecessary.”). Accordingly, the trial court correctly determined
that Koroly did not meet his burden of proving Couch’s
performance was deficient. See Nelson v. State, 43 So. 3d 20, 28
(Fla. 2010) (“[T]he defendant carries the burden to overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.”).

                             b. Prejudice

     In addition to failing to establish deficient performance,
Koroly also failed to demonstrate prejudice. In Hill v. Lockhart,
474 U.S. 52, 58 (1985), the Supreme Court applied the Strickland
test to claims of ineffective assistance of counsel in the context of
a defendant pleading guilty to a crime. The Court modified the
Strickland prejudice requirement, stating that in plea cases the
issue is “whether counsel’s constitutionally ineffective
performance affected the outcome of the plea process. In other
words, in order to satisfy the ‘prejudice’ requirement, the
defendant must show that there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Id. at 59; see also Brazeail
v. State, 821 So. 2d 364, 368 (Fla. 1st DCA 2002).

    Importantly, “[t]he prejudice component of a Hill claim
involves a legal standard and is not a purely factual
determination.” Capalbo v. State, 73 So. 3d 838, 841 (Fla. 4th DCA
2011). “Courts should not upset a plea solely because of post hoc

                                  9
assertions from a defendant about how he would have pleaded but
for his attorney’s deficiencies.” Jae Lee v. United States, 137 S.Ct.
1958, 1967 (2017). Rather, in determining whether a defendant
was prejudiced, we must objectively consider the totality of the
circumstances at the time of the plea:

      [I]n determining whether a reasonable probability
      exists that the defendant would have insisted on going
      to trial, a court should consider the totality of the
      circumstances surrounding the plea, including such
      factors as whether a particular defense was likely to
      succeed at trial, the colloquy between the defendant
      and the trial court at the time of the plea, and the
      difference between the sentence imposed under the
      plea and the maximum possible sentence the
      defendant faced at a trial.

Grosvenor v. State, 874 So. 2d 1176, 1181-82 (Fla. 2004) (emphasis
added).

     Here, Koroly testified that if Couch had provided him with the
information from an accident reconstruction expert like Fournier,
there was “no question” he would have elected to go to trial. Couch
seemingly agreed:

    Whether or not it would have changed my client’s
    opinion, I think it probably would have, to tell you the
    truth, because of his complete lack of any kind of history
    of this type of thing, his complete standing as an officer
    in the Navy and making sound decisions in combat. I
    know that this was bewildering to him: How in the
    world could I have possibly found myself in this
    position?

    So it may have changed his mind. He may have decided
    this is why I was there is because of inadequate signage,
    and I made a mistake that anybody could have made. So
    he may have said, I understand what you are saying,
    Clint, but I want to take this to trial. I can’t say today
    that he would have wanted – you know, entered a plea
    or taken the case to trial.

                                 10
     However, under Lee, we cannot upset Koroly’s plea based
solely on his post hoc assertions that he would have elected to go
to trial had he obtained an expert report. Lee, 137 S.Ct. at 1967.
Instead, we must apply the Grosvenor factors and consider the
totality of the circumstances surrounding his plea. In doing so, we
find that the contemporaneous evidence from the time of Koroly’s
plea does not substantiate his post hoc preference for trial. First,
Koroly received a dramatically lower prison sentence than what he
would have been subjected to had he elected to go to trial. Charged
with second- and third-degree felonies, Koroly was facing up to
twenty years’ imprisonment with a four-year mandatory
minimum. But as a result of the plea, Koroly received the lowest
permissible sentence under the Criminal Punishment Code—
13.25 years’ imprisonment. Second, Koroly signed an agreement
acknowledging the consequences of entering a plea, and the
sentencing court conducted a sufficient plea colloquy to ensure
Koroly understood those rights he was forfeiting, including the
right to trial and the right to present any and all defenses.

     As to the final factor, any defense Koroly could have raised by
virtue of obtaining a more comprehensive accident reconstruction
had little to no likelihood of succeeding at trial. Despite the clear
language in Grosvenor, Koroly asserts that the success of any
potential defense is not a relevant consideration in determining
whether Couch’s deficient performance prejudiced him. However,
the United States Supreme Court recently clarified that where a
defendant’s decision about going to trial turns on his prospects of
success, and the attorney’s alleged error affected those prospects
of success, “the defendant must also show that he would have been
better off going to trial.” Lee, 137 S.Ct. at 1966. The Court
explained that the prejudice inquiry “demands a case-by-case
examination of the totality of the evidence” and focuses on a
defendant’s decision-making:

    A defendant without any viable defense will be highly
    likely to lose at trial. And a defendant facing such long
    odds will rarely be able to show prejudice from accepting
    a guilty plea that offers him a better resolution than
    would be likely after trial. But that is not because the
    prejudice inquiry in this context looks to the probability

                                 11
    of a conviction for its own sake. It is instead because
    defendants obviously weigh their prospects at trial in
    deciding whether to accept a plea. Where a defendant has
    no plausible chance of an acquittal at trial, it is highly
    likely that he will accept a plea if the Government offers
    one.

Id. (internal citations omitted).

     Had Koroly obtained a more comprehensive accident
reconstruction, he argues he would have advanced a defense at
trial that it was not his intoxicated driving that caused the crash,
but rather the defective road signs and poor weather conditions
that caused him to drive the wrong way onto the interstate. But
evidence of poor road conditions and inadequate signage would
have had very little probative value in light of the overwhelming
evidence of Koroly’s intoxication and the extremely low threshold
for proving causation under the DUI manslaughter statute. See §
316.193, Fla. Stat. (2011). Under the plain language of the statute,
the State was not required to prove that Koroly’s intoxicated
driving was the sole cause of the fatal crash. As we recently
explained in Pryear v. State, 43 Fla. L. Weekly D491 (Fla. 1st DCA
Feb. 28, 2018):

    DUI manslaughter requires proof that a defendant
    operated a vehicle while impaired within the meaning of
    section 316.193(1), Florida Statutes (2013), and, “by
    reason of such operation, cause[d] or contribute[d] to
    causing . . . [t]he death of any human being . . . .” §
    316.193(3)(c)3.a., Fla. Stat. (2013) (emphasis added).
    “[T]he fact that someone is intoxicated and drives a
    particular vehicle which causes another person’s death
    should be enough to satisfy the elements of DUI
    manslaughter.” State v. Hubbard, 751 So. 2d 552, 563
    (Fla. 1999). “The causation element of the amended
    statute was interpreted by [the Florida Supreme Court]
    in [Magaw v. State, 537 So. 2d 564, 567 (Fla. 1989),] as
    not requiring that the conduct of the operator of the
    vehicle be the sole cause.” Hubbard, 751 So. 2d at 564
    (emphasis in original). “The statute requires only that
    the operation of the vehicle should have caused the

                                    12
     accident. Therefore, any deviation or lack of care on the
     part of a driver under the influence to which the fatal
     accident can be attributed will suffice.” Magaw, 537 So.
     2d at 567.

Id. at *5. 1

     That Koroly’s intoxicated driving contributed to the death of
Robinson and Jordan’s injuries was indisputable. Koroly’s blood
alcohol level was over twice the legal limit. Two emergency
responders overheard Koroly say that he had consumed fourteen
beers. The officers responding to the scene noticed Koroly’s eyes
were bloodshot and his speech was slurred. Although Koroly’s
point of entry is unknown, the expert testimony examined several
possible routes, the closest of which placed the scene of the crash
at least 1,700 feet away from the nearest entry point. Even if
inadequate signage and poor road conditions led Koroly the wrong
way, had Koroly not been intoxicated he likely would have noticed
the interstate median on his right and the headlights of any
oncoming vehicles and corrected his actions before traveling the
length of over five football fields and colliding head-on with Johnny
Robinson. See Hubbard, 751 So. 2d at 563 (citing Ingram v. Pettit,
340 So. 2d 922, 924-25 (Fla. 1976) (“Intuitively, someone who is
intoxicated will not be able to control his or her automobile in a
safe manner and make quick decisions and execute maneuvers
that will avoid accidents.”)). No expert testimony could have
refuted the fact that Koroly’s driving under the influence
contributed to the cause of Robinson’s death and Jordan’s injuries.
Koroly’s purported defense had virtually no possibility of
succeeding at trial. See Hill, 474 U.S. at 59 (“[W]here the alleged
error of counsel is a failure to advise the defendant of a potential
affirmative defense to the crime charged, the resolution of the

     1 In Pryear, we noted that the current version of the DUI
manslaughter statute contains an even lower threshold for
establishing causation than the version of the statute interpreted
in Magaw and Hubbard. Id. The previous version of the statute
required that operating a vehicle while intoxicated “cause” a death,
whereas the current version requires operating a vehicle while
intoxicated “cause or contribute to” the victim’s death. See §
316.193(3)(c)3., Fla. Stat. (2013) (emphasis added).
                                 13
‘prejudice’ inquiry will depend largely on whether the affirmative
defense likely would have succeeded at trial.”); Grosvenor, 874 So.
2d at 1181 (“The merits of any defense . . . is relevant to the
credibility of the defendant’s assertion that he would have insisted
on going to trial. If the defense was meritless, the defendant’s
claim carries much less weight.”).

     Viewing the totality of the circumstances as required by
Grosvenor, and applying the Court’s clarification of the standard
in Lee, we find that Koroly has not established that but for Couch’s
failure to obtain a more comprehensive accident reconstruction
report, he would have elected to go to trial. Koroly acknowledged
the consequences of his plea and received a far better sentence
than would be likely after trial. Considering the minimum
threshold for proving causation for the offenses of DUI
manslaughter and DUI with serious bodily injury, Koroly did not
meet his burden of proving that his defense of defective road
signage would have succeeded at trial in light of the overwhelming
evidence of his intoxication. Because Koroly failed to establish
either deficient performance or prejudice, we affirm the trial
court’s denial of postconviction relief.

M.K. THOMAS concurs; B.L. THOMAS, C.J., concurs in result only.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Michael Ufferman of Michael Ufferman Law Firm, P.A.,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg,
Assistant Attorney General, Tallahassee, for Appellee.




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