         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-2193
                 _____________________________

ALLEN BURKHALTER,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Waddell Wallace, Judge.

                       September 9, 2019


PER CURIAM.

     The Appellant challenges an order denying his
postconviction motion brought pursuant to Florida Rule of
Criminal Procedure 3.850. For the reasons discussed below, we
affirm.

     In 2012, the Appellant was convicted by a jury of two counts
of armed burglary with assault or battery and was sentenced to a
term of life in prison for both counts, to be served concurrently.
He was adjudicated a prison releasee reoffender (PRR). He filed
a timely notice of appeal, and this Court reversed his conviction
for count two because it constituted a double jeopardy violation.
See Burkhalter v. State, 111 So. 3d 993 (Fla. 1st DCA 2012). A
revised judgment was entered, finding the Appellant guilty of one
count of armed burglary with assault, sentencing him to life in
prison, and adjudicating him PRR.

    In 2014, the Appellant filed a timely motion for
postconviction relief pursuant to Florida Rule of Criminal
Procedure 3.850 raising seven claims. The lower court summarily
dismissed each claim, and this timely appeal followed.

     In the Appellant’s Initial Brief, he argues that the lower
court erred in denying grounds one, three, four, six, and seven of
his 3.850 motion. Therefore, appellate review of claims two and
five has been waived. See Watson v. State, 975 So. 2d 572, 573
(Fla. 1st DCA 2008). We affirm the summary denial of grounds
one, four, and seven without discussion. We affirm the lower
court’s summary denial of grounds three and six 1 for the reasons
discussed below.

    In grounds three and six, the Appellant argues that counsel
was ineffective in failing to present the testimony of three
witnesses who would have undermined the testimony of two of
the State’s witnesses, including the child victim of the armed
burglary. The lower court found that the proposed testimony was
not exculpatory and that there was sufficient evidence of the
Appellant’s guilt in the other evidence presented by the State.
This Court issued a Toler 2 order asking the State to apply the


    1  This was not a facially sufficient claim as it did not state
the witness was available for trial. See Leftwich v. State, 954 So.
2d 714, 714 (Fla. 1st DCA 2007) (finding that in order to state a
facially sufficient claim for failure to call a potential witness, the
movant must allege the identity of the potential witness, the
substance of the witness’s testimony, an explanation of how the
omission of the testimony prejudiced the outcome of the case, and
a representation that the witness was available for trial)
(internal citations omitted). However, because it is legally
meritless for the reasons discussed below, remanding it to allow
the Appellant to set forth a facially sufficient claim would be a
waste of judicial resources.
    2   Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986).

                                  2
holding in Jacobs v. State, 880 So. 2d 548, 555 (Fla. 2004), to this
case. The State, in its response to the order, conceded error in
light of Jacobs.

     However, Jacobs is distinguishable from this case. In
Jacobs, the Florida Supreme Court found that “the mere
existence of evidence of guilt is insufficient to conclusively rebut a
claim of ineffectiveness in failing to present evidence of innocence
in the form of known and available alibi witnesses.” Id. at 555.
More broadly, the Jacobs court found that a claim involving
“important exculpatory evidence” cannot be resolved on the basis
of conflicting evidence in the record. Id. Here, the purported
testimony would not have provided any exculpatory evidence.
See Kennon v. State, 261 So. 3d 755, 758 (Fla. 2019) (finding that
evidence was exculpatory where it provided an explanation for
why the defendant’s blood was found at the scene of the crime);
Terrell v. State, 9 So. 3d 1284, 1288 (Fla. 4th DCA 2009) (finding
the eyewitness testimony that the defendant did not intentionally
slam his car into the police car was exculpatory); Campbell v.
State, 247 So. 3d 102, 107 (Fla. 2d DCA 2018) (finding the
testimony was exculpatory where it would have shown the
defendant was not the only person in the car where the drugs
were discovered). Rather, the testimony of these witnesses would
have merely undermined the testimony of the victim and her
mother. As such, Jacobs is not applicable.

     “Whether to call a witness at trial is the type of strategic
decision for which the lawyer's professional judgment is generally
not subject to postconviction second-guessing . . . .” Ferguson v.
State, 101 So. 3d 895, 897 (Fla. 4th DCA 2012) (citing to
Strickland v. Washington, 466 U.S. 668, 689–90 (1984)). “[I]f the
defendant consents to counsel's strategy, there is no merit to a
claim of ineffective assistance of counsel.” Id. (quoting Gamble v.
State, 877 So. 2d 706, 714 (Fla. 2004) (citing to Mendoza v.
State, 81 So. 3d 579, 582 (Fla. 3d DCA 2012) (“[N]ot only is
Mendoza unable to rebut the presumption that counsel's decision
was reasonable and strategic, Mendoza's express agreement to
such a decision is fatal to his claim of ineffective assistance of
counsel.”)).



                                  3
     Here, before the defense put on its case, the trial judge asked
the Appellant if he agreed that he and three other witnesses,
none of whom were the witnesses at issue, would be the only
witnesses called. The Appellant consented on the record to
counsel’s strategy to call these three witnesses. That is fatal to
his claim. Because the Appellant consented to not calling these
four proposed witnesses, the lower court did not err in summarily
denying this ground though its reason for doing so was flawed.
See Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (discussing
that an appellate court may affirm a trial court order that
reaches the right result, but for the wrong reason); Farrey’s
Wholesale Hardware Co. v. Hobesound Indus. Park, Inc., 719 So.
2d 374, 375 (Fla. 1st DCA 1998) (discussing the tipsy coachman
rule and finding the lower court had reached the right result, but
for the wrong reason).

    AFFIRMED.

ROBERTS, KELSEY, and M.K. THOMAS, JJ., concur.

                 _____________________________

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


Rick A. Sichta, Joseph Hamrick, and Susanne K. Sichta,
Jacksonville, for Appellant.

Ashley Moody, Attorney General, and Benjamin L. Hoffman,
Assistant Attorney General, Tallahassee, for Appellee.




                                 4
