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


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



JABE IRA CARNEY,                              )
                                              )
              Appellant,                      )
                                              )
v.                                            )         Case No. 2D13-3956
                                              )
STATE OF FLORIDA,                             )
                                              )
              Appellee.                       )
                                              )

Opinion filed February 11, 2015.

Appeal from the Circuit Court for Manatee
County; Thomas Krug, Judge.

Howard L. Dimmig, II, Public Defender, and
J.L. "Ray" LeGrande, Special Assistant
Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Timothy A. Freeland,
Assistant Attorney General, Tampa, for
Appellee.


CASANUEVA, Judge.

              Jabe Ira Carney challenges the denial of his motion, and amended motion,

for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, in

which he raised nine grounds for relief. Five of these grounds were pursued on appeal.

We affirm the order denying postconviction relief as to all grounds and write only to
address Carney's fifth ground for relief, involving counsel's failure to object to Carney's

mother testifying as a State witness in shackles and jail garb.

              Carney was involved in a single-vehicle crash on February 5, 2006, near

the north bound Skyway Bridge toll booth. All three occupants were thrown from the

vehicle and one died. The State charged Carney as the driver. He entered a no

contest plea to driving while license revoked, habitual traffic offender, and went to trial

on the remaining charges of DUI manslaughter, driving while license suspended and

causing death, and two counts of driving under the influence (property damage or

personal injury). Carney's defense was that he was not the driver at the time of the

accident. He was convicted as charged on all counts except one count of driving under

the influence with property damage or personal injury, which was reduced to driving

under the influence. He was sentenced to a total of fifteen years' imprisonment.

              Carney's fifth ground for postconviction relief alleged that counsel was

ineffective for failing to object to his mother testifying while shackled, handcuffed, and in

jail attire because, even though she was called as a State witness, Carney suffered

unfair prejudice due to his familial relationship with the witness. Applying the two-prong

test from Strickland v. Washington, 466 U.S. 668, 686-87, 694 (1984),

              [a] party seeking postconviction relief based on ineffective
              assistance of counsel must show (1) counsel's specific acts
              or omissions were "so serious that counsel was not
              functioning as the 'counsel' guaranteed the defendant by the
              Sixth Amendment" and (2) prejudice by "show[ing] that there
              is a reasonable probability that, but for counsel's
              unprofessional errors, the result of the proceeding would
              have been different." . . . "The benchmark for judging any
              claim of ineffectiveness must be whether counsel's conduct
              so undermined the proper functioning of the adversarial
              process that the trial cannot be relied on as having produced
              a just result."



                                            -2-
State v. Richardson, 963 So. 2d 267, 270 (Fla. 2d DCA 2007) (second alteration in

original) (citations omitted).

              At the postconviction hearing, Carney's counsel admitted that his failure to

object was not a strategic decision; rather, it simply did not occur to him to object

because Carney's mother was called as a State witness. There was no allegation that

Carney's mother posed a threat to the security of the courtroom. The postconviction

court found that even when a witness is called by the State, the negative influence

caused by shackles and jail attire may in fact hurt a defendant "in so far as the witness

is conceived to be associated with [the defendant]." (Quoting Commonwealth v. Brown,

305 N.E. 2d 830, 834 (Mass. 1973).) Nonetheless, the court concluded that based on

the substance of the mother's testimony and the other evidence introduced against

Carney, the result of the trial would have been the same even if Carney's mother had

been unshackled and dressed in nonjail attire. We agree with the postconviction court

on both points.

              "[A]s a general rule, it is error for the trial court to compel a defense

witness to appear in jail or prison clothing if the defendant objects." Hayes v. State, 140

So. 3d 1106, 1108 (Fla. 1st DCA 2014); see also Mullins v. State, 766 So. 2d 1136,

1137 (Fla. 2d DCA 2000). Some states have extended this general rule to all witnesses

in criminal cases, whether for the prosecution or for the defense. See State v. Kuchera,

969 A.2d 1052, 1055 (N.J. 2009); State v. Rodriguez, 45 P.3d 541, 542 (Wash. 2002).

              Florida has not adopted such a rule and, in several cases, has rejected

claims of prejudice resulting from State witnesses appearing in jail or prison garb. In

Hedrick v. State, 6 So. 3d 688 (Fla. 4th DCA 2009), the Fourth District agreed with the



                                            -3-
trial court that the defendant was not prejudiced by the appearance of his co-defendants

in shackles and prison garb and further concluded that defense counsel's decision not

to object was reasonable. In that case, the co-defendants were brought in by the State

only as a "demonstrative exhibit" to show the relative height of the co-defendants and

Hedrick. Id. at 694. The co-defendants' involvement in the crime was not disputed, and

Hedrick's theory was that he was there but did not participate in the crime. Id. Further,

Hedrick's "[t]rial counsel testified that he felt this actually helped the defendant because

the [S]tate was relying on prisoners to make its case." Id.

              In Tompkins v. State, 386 So. 2d 597 (Fla. 5th DCA 1980), the defendant

was accused of committing a sexual battery against another inmate while incarcerated

at Sumter Correctional Institution. In that case, the Fifth District found:

              [A]ppellant's contention that his right to a fair trial was
              prejudiced by the trial court's permitting [S]tate's witnesses
              to appear in prison attire is without merit. If there was any
              prejudice, it was against the [S]tate, since the fact of the
              [S]tate's witnesses' inmate status would affect the credibility
              of their testimony against the defendant.

Id. at 599.

              There is a dearth of case law addressing whether prejudice may result

against a defendant when a witness called by the State appears in shackles and jail

garb and that witness is known to be closely associated with the defendant. While it is

true that a State witness's inmate status will most often prejudice the State, if anyone,

because of the impact on the witness's credibility, see Tompkins, 386 So. 2d at 599; it is

also true that the witness's inmate status may hurt the defendant "in so far as the

witness is conceived to be associated with him," Brown, 305 N.E. 2d at 834 (emphasis

added).



                                            -4-
              In Hayes, 140 So. 3d at 1108, the First District "agree[d] with the majority

of jurisdictions and [found] that as a general rule, it is error for the trial court to compel a

defense witness to appear in jail or prison clothing if the defendant objects." In doing

so, the court noted that cases from other jurisdictions have concluded that "jail garb may

'undermine[] the witness' credibility,' or the jury may believe the defendant is 'guilty by

association' with the incarcerated witness." Id. (alteration in original) (emphasis added)

(quoting Hightower v. State, 154 P.3d 639, 641 (Nev. 2007)). We conclude that this

injury of guilt by association may result in prejudice to the defendant regardless of

whether the witness is called by the State or the defendant where, as here, the

defendant is perceived to be closely associated with the witness. Thus, under the facts

of this case, we find that counsel's failure to object to Carney's mother appearing in

shackles and jail garb constituted deficient performance.

              Nonetheless, in light of the substance of the mother's testimony and the

strong evidence introduced against Carney at trial, we agree with the postconviction

court that the result would have been the same even if Carney's mother had not been

shackled and dressed in jail attire. Carney has thus failed to establish ineffective

assistance of counsel because the prejudice prong of Strickland has not been met. See

Richardson, 963 So. 2d at 270. Accordingly, we affirm.

              Affirmed.



WALLACE and SLEET, JJ., Concur.




                                              -5-
