         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


STATE OF FLORIDA,

             Appellant,

 v.                                                    Case No. 5D16-462

ISAAC L. ANDERSON, JR.,

             Appellee.

________________________________/

Opinion filed March 31, 2017

Appeal from the Circuit Court
for Orange County,
Robert J. Egan, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellant.

David Frakt, of Law Office of David Frakt,
Orlando, for Appellee.


BERGER, J.

      The State of Florida appeals an amended final order granting Grounds Three and

Eight of Isaac Anderson’s postconviction motion alleging ineffective assistance of trial

counsel. See Fla. R. Crim. P. 3.850. The State argues that the postconviction court erred

in vacating two of Anderson’s convictions: namely, Count Three, fleeing and eluding, and

Count Four, resisting arrest without violence because the ineffective assistance of
counsel claims raised in Grounds Three and Eight do not concern those convictions.1 We

agree and reverse.

      Anderson was found guilty at trial of two counts of aggravated battery on a police

officer with a deadly weapon (Counts One and Two), one count of fleeing and eluding,

and one count of resisting arrest without violence. The charges arose after officers in

marked police vehicles performed a dynamic takedown of the stolen Ford Focus that

Anderson was driving. The takedown resulted in multiple collisions between the Ford

Focus and two police cars.2 After these initial collisions, Anderson fled. Officers, aided

by an Orange County Sheriff’s Office chase helicopter, pursued Anderson for over five

miles until he stopped the Ford Focus in the Pine Hills neighborhood of Orlando. Once

stopped, the Ford Focus was rear-ended by a pursuing police car. Anderson and his

passenger, Laron Johnson,3 jumped out of the car and fled on foot.            They were

apprehended a short time later.




      1The State did not appeal the portion of the postconviction court's order vacating
Anderson’s convictions on Counts One and Two for aggravated battery on a law
enforcement officer with a deadly weapon.
      2   The State's theory at trial on the aggravated battery counts was that Appellant
used the Ford Focus as a deadly weapon and rammed it head on into the police cars to
move them out of the way and make good his escape. The State's version of the facts
evolved over the course of the postconviction proceedings, particularly after the State's
theory of the case and the testimony of the police officers were contradicted by post-
collision photographs of the Ford Focus, taken by the owner's auto insurer, that showed
no damage to the front of the Ford Focus.
      3  Before Anderson’s trial, Laron Johnson pled guilty to a misdemeanor resisting
without violence charge in connection with the incident.


                                            2
         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


STATE OF FLORIDA,

             Appellant,

 v.                                                    Case No. 5D16-462

ISAAC L. ANDERSON, JR.,

             Appellee.

________________________________/

Opinion filed March 31, 2017

Appeal from the Circuit Court
for Orange County,
Robert J. Egan, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellant.

David Frakt, of Law Office of David Frakt,
Orlando, for Appellee.


BERGER, J.

      The State of Florida appeals an amended final order granting Grounds Three and

Eight of Isaac Anderson’s postconviction motion alleging ineffective assistance of trial

counsel. See Fla. R. Crim. P. 3.850. The State argues that the postconviction court erred

in vacating two of Anderson’s convictions: namely, Count Three, fleeing and eluding, and

Count Four, resisting arrest without violence because the ineffective assistance of
record. Hitchcock, 991 So. 2d at 346 (citing Sochor, 883 So. 2d at 771-72); State v.

Coney, 845 So. 2d 120, 132-33 (Fla. 2003) (citing Stephens, 748 So. 2d at 1031-34). The

postconviction court's legal conclusions and its application of the law to the facts are

reviewed de novo. Hitchcock, 991 So. 2d at 346 (citing Sochor, 883 So. 2d at 771-72);

Coney, 845 So. 2d at 132-33 (citing Stephens, 748 So. 2d at 1034).

       Defense counsel renders ineffective assistance of counsel "when counsel's

performance falls outside the range of reasonable professional assistance and when

there is a reasonable probability that the results of the proceeding would have been

different but for the inadequate performance." Larry v. State, 61 So. 3d 1205, 1207 (Fla.

5th DCA 2011) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). This standard

requires the defendant to show, first, that his trial counsel's performance was deficient

such that it falls below the minimum standard of reasonableness set by the Sixth

Amendment to the United States Constitution and, second, prejudice arising from that

deficient performance.    Morris v. State, 931 So. 2d 821, 827-28 (Fla. 2006) (citing

Strickland, 466 U.S. at 687).

       The attorney’s performance is analyzed with great deference under an objective

standard of reasonableness. Bradley v. State, 33 So. 3d 664, 671 (Fla. 2010). An

attorney's performance is constitutionally acceptable if the attorney renders reasonably

competent and effective assistance. Strickland, 466 U.S. at 687 (citing Trapnell v. United

States, 725 F.2d 149, 151-52 (2d Cir. 1983)). Mistakes and errors made by counsel,

including unreasonable errors, are not sufficient to set aside the judgment unless the error

actually prejudiced the defendant by affecting the judgment. Id. at 687, 691-92 (citing

United States v. Morrison, 449 U.S. 361, 364-65 (1981)).




                                             4
       Prejudice in the ineffective assistance of counsel analysis can be established only

when the error alleged in the grounds for relief affects the validity of the conviction and

sentence at issue such that there is a reasonable probability that the outcome of the trial

would have been different. See id. at 694; see also Edwards v. State, 410 So. 2d 635,

635 (Fla. 1st DCA 1982) (finding that denial of relief under rule 3.850 was proper where

deficient performance of defendant's trial counsel in failing to advise defendant of

deadline to appeal and right to counsel on appeal was not prejudicial because it did not

affect validity of defendant's conviction and sentence); cf. Commonwealth v. Tavernier,

922 N.E.2d 166, 169, 171-78 (Mass. App. Ct. 2010) (granting postconviction relief motion

and vacating convictions on over a dozen counts where guilty pleas were not supported

by adequate plea colloquy but affirming on two counts where plea colloquy adequately

supported guilty plea). The prejudice analysis must be determined in the context of the

entire record of the case. Occhicone v. State, 768 So. 2d 1037, 1041 (Fla. 2000) (citing

Haliburton v. Singletary, 691 So. 2d 466, 470 (Fla. 1997)).

       Here, the State does not challenge the postconviction court’s finding of deficient

performance.    We, therefore, turn our attention to whether counsel’s failure to call

Johnson and the accident reconstruction expert as witnesses resulted in prejudice to

Anderson as it relates to his convictions for fleeing and eluding and resisting without

violence. We conclude it did not.

       Anderson admitted at trial that he fled the scene of the initial collisions and that he

fled on foot after the collision at the end of the car chase because he was paranoid and

thought the police would kill him based on news reports he had read about the Orlando

Police Department. This admission precludes a finding that Anderson was prejudiced by




                                              5
his trial counsel's failure to call Johnson as a witness.4 Cf. United States v. Ausmus, 774

F.2d 722, 727 (6th Cir. 1985) (finding in income tax evasion case that prejudice prong of

Strickland was not met where defendant admitted on cross-examination that his failure to

pay income taxes "was not accidental, negligent, or inadvertent"); Gibson v. State, 835

So. 2d 1159, 1161 (Fla. 2d DCA 2002) (noting there was no prejudice because defendant

admitted to offense in police interview).

        Moreover, Ground Three of Anderson’s motion did not allege that Johnson’s

testimony would have had any impact on Anderson’s convictions for fleeing and eluding

and resisting without violence. Likewise, Ground Eight did not affect those convictions

either because Anderson’s motion did not allege that the accident reconstruction expert's

testimony would have had any bearing on the events that occurred after the initial

collisions between the police cars and the Ford Focus. Indeed, the expert testified at the

evidentiary hearing that he did no analysis of damage to the Ford Focus that occurred

after the initial collisions.

        Accordingly, because Grounds Three and Eight of Anderson’s rule 3.850 motion

factually relate only to his aggravated battery convictions, we reverse that portion of the

postconviction court’s order vacating Anderson’s convictions for fleeing and eluding and

resisting without violence. In all other respects, we affirm.5



        4Anderson's claim that Johnson's testimony would establish a defense to the
fleeing and eluding count is spurious. Fear of the police as a defense would eviscerate
the crime and certainly does nothing to establish a defense of necessity or duress,
particularly when Anderson's trial testimony leaves no doubt that he knew he was fleeing
law enforcement officers. See § 776.051(1), Fla. Stat. (2011); Rowley v. State, 939 So.
2d 298, 300 (Fla. 4th DCA 2006).
        5
        Anderson also contends that the postconviction court should have granted relief
on the Brady claims in Ground Two of the rule 3.850 motion. Anderson's argument on


                                             6
       AFFIRMED in part, REVERSED in part, and REMANDED.

LAMBERT and EDWARDS, JJ., concur.




Ground Two is procedurally barred because Anderson did not file a cross-appeal. See
State v. Jimenez, 173 So. 3d 1020, 1023 n.3 (Fla. 3d DCA 2015); State v. Nicholson, 819
So. 2d 908, 910 (Fla. 4th DCA 2002); see also MacKenzie v. Centex Homes, 208 So. 3d
790, 792-93 (Fla. 5th DCA 2016) ("A cross appeal is the proper method to seek review of
an earlier non-final order when the final order is entirely favorable to the appellee." (citing
Fla. R. App. P. 9.130(g), (h))); Allen v. TIC Participations Tr., 722 So. 2d 260, 261 (Fla.
4th DCA 1998). As Anderson is arguing for the reversal of the summary denial on Ground
Two as an alternative ground to affirm the rest of the order, the tipsy coachman doctrine
would not apply. See MacKenzie, 208 So. 3d at 793 n.3.


                                              7
