          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/Cross-Appellee,
                                                       Case No. 5D15-1524
 v.

ANTHONY MARKIECE JACKSON,

           Appellee/Cross-Appellant.
________________________________/

Opinion filed November 10, 2016

3.850 Appeal from the Circuit
Court for Orange County,
Wayne C. Wooten, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Rebecca Roark Wall,
Assistant Attorney General, Daytona
Beach, for Appellant/Cross-Appellee.

Paula    C.   Coffman,    Orlando,       for
Appellee/Cross-Appellant.

COHEN, J.

      The State appeals the order granting Anthony Markiece Jackson’s motion for

postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. 1 Jackson was

convicted of attempted first-degree murder with a firearm, robbery with a firearm, and

aggravated battery with a firearm, and sentenced to thirty years’ imprisonment. The



      1Jackson cross-appeals only the summary denial of his “stand your ground” claim.
No appeal was taken from the summary denial of the other claims raised. We affirm the
summary denial of the “stand your ground” claim without further comment.
postconviction court vacated Jackson’s sentence and ordered a new trial based on the

ineffectiveness of Jackson’s trial counsel. We reverse.

       On the night of August 31, 2007, Jackson entered Arnold Felix’s taxi cab and

requested a short ride to a residential neighborhood. When the cab arrived at the

destination, Jackson handed Felix a debit card for payment, but the card was declined.

Felix’s and Jackson’s versions of what happened next differ. At trial, Felix claimed that

when he informed Jackson that the card was declined, Jackson told him he had a second

card. Jackson then sprayed Mace into his eyes. Felix reached into the back seat and

grabbed Jackson, and Jackson shot him twice in the neck. Realizing he was shot, and

fading in and out of consciousness, Felix pressed an emergency button in the cab to notify

emergency responders. Jackson fled, taking with him Felix’s wallet and cell phone, along

with the keys to the cab.

       Jackson testified that he had attended a high school football game earlier in the

evening and had taken a gun for protection, along with a box of ammunition, Mace, and

latex gloves. 2 After the game, Jackson went to Universal Studios and later decided to

take a cab home. Jackson testified that the cab doors unlocked when the cab stopped at

the destination, but that Felix locked the doors because his debit card was declined and

Felix refused to allow him to leave. 3 He also testified that he had an additional credit card

but claimed he never presented it to Felix because “it never crossed [his] mind.” Jackson

claimed Felix became aggressive, grabbed and choked him, and threatened to kill him.



       2Jackson claimed, somewhat incredibly, that he needed the gloves because he
had a cousin who dealt drugs.
       3Felix testified that the doors automatically lock during the ride and are only
unlocked after the fare has been collected.

                                              2
which opened the door to damaging testimony that effectively undermined his claim of

self-defense. The postconviction court held an evidentiary hearing solely on the issue

raised in claim J. The court granted Jackson’s motion for postconviction relief, finding that

Jackson’s counsel was ineffective for raising the insanity defense because it was

unsupported by the evidence and opened the door to damaging testimony.

       Initially, the State argues that Jackson’s rule 3.850 motion was procedurally

barred. It contends that the issue of ineffective assistance of counsel was raised and

decided in the initial appeal and is, thus, the law of the case. Yet, the scope of review on

direct appeal differs from the scope of review for a rule 3.850 postconviction motion. A

finding that Jackson did not show error apparent on the face of the record to obtain relief

on direct appeal would not preclude a finding of ineffective assistance of counsel after an

evidentiary hearing on a rule 3.850 motion. See Clarke v. State, 102 So. 3d 763, 764-65

(Fla. 4th DCA 2012); Allen v. State, 100 So. 3d 747, 748 (Fla. 2d DCA 2012).

       The State also argues that claim J was untimely because it raised an entirely new

claim more than two years after issuance of the appellate mandate. See Fla. R. Crim.

Pro. 3.850(b) (requiring that a motion be brought within two years of the judgment and

sentence becoming final absent exceptions). The motion for postconviction relief that was

timely filed alleged that counsel erred in failing to present additional evidence in support

of the insanity defense. Claim J took the opposite approach, claiming ineffective

assistance of counsel in raising an insanity defense at the outset. Although the State’s

argument that the amendment was untimely appears to have merit, it is of no avail

because the State did not raise the issue in the lower court. 5 Cf. Cook v. State, 638 So.



       5 The irony of the State’s failure to raise this issue below in an ineffective
assistance of counsel case is not lost on us.
                                             4
which opened the door to damaging testimony that effectively undermined his claim of

self-defense. The postconviction court held an evidentiary hearing solely on the issue

raised in claim J. The court granted Jackson’s motion for postconviction relief, finding that

Jackson’s counsel was ineffective for raising the insanity defense because it was

unsupported by the evidence and opened the door to damaging testimony.

       Initially, the State argues that Jackson’s rule 3.850 motion was procedurally

barred. It contends that the issue of ineffective assistance of counsel was raised and

decided in the initial appeal and is, thus, the law of the case. Yet, the scope of review on

direct appeal differs from the scope of review for a rule 3.850 postconviction motion. A

finding that Jackson did not show error apparent on the face of the record to obtain relief

on direct appeal would not preclude a finding of ineffective assistance of counsel after an

evidentiary hearing on a rule 3.850 motion. See Clarke v. State, 102 So. 3d 763, 764-65

(Fla. 4th DCA 2012); Allen v. State, 100 So. 3d 747, 748 (Fla. 2d DCA 2012).

       The State also argues that claim J was untimely because it raised an entirely new

claim more than two years after issuance of the appellate mandate. See Fla. R. Crim.

Pro. 3.850(b) (requiring that a motion be brought within two years of the judgment and

sentence becoming final absent exceptions). The motion for postconviction relief that was

timely filed alleged that counsel erred in failing to present additional evidence in support

of the insanity defense. Claim J took the opposite approach, claiming ineffective

assistance of counsel in raising an insanity defense at the outset. Although the State’s

argument that the amendment was untimely appears to have merit, it is of no avail

because the State did not raise the issue in the lower court. 5 Cf. Cook v. State, 638 So.



       5 The irony of the State’s failure to raise this issue below in an ineffective
assistance of counsel case is not lost on us.
                                             4
Jackson and prepared a report finding that “[Jackson] was sane at the time of the offense

and it is my opinion he did not meet the insanity criteria.” Later, when the State moved to

have its own experts appointed to examine Jackson and included Dr. Danziger as one of

those experts, Manuel did not object because she did not remember that Dr. Danziger

had previously evaluated Jackson. The prior communication between Jackson and Dr.

Danziger was protected by the attorney-client privilege, and Manuel should have objected

to the State’s appointment of Dr. Danziger as its expert.

       At trial, Manuel introduced the insanity defense through the testimony of Dr.

Charles English, a clinical psychologist. The postconviction court determined that,

“Despite having no evidence of insanity, counsel decided to pursue an insanity defense

which had no hope of succeeding and, in fact, led to damaging testimony against the

Defendant.” While it is true that Dr. English did not parrot the Florida legal standard for

insanity, sometimes referred to as a modified M’Naghten standard, 9 Dr. English testified

that Jackson “had a psychotic breakdown that caused him to believe the victim was going

to kill him.” He also testified that Jackson was delusional and was hallucinating at the time

of the shooting. Dr. English opined that Jackson was temporarily insane at the time of the

incident. While the State’s experts disagreed with Dr. English, and the jury did not accept

Jackson’s insanity defense, the postconviction court’s conclusion that no evidence of

insanity was presented is not supported by the record.




must be true for experts privately retained for a similar purpose without the assistance of
the trial court.”).
       9  Under Florida law, the defendant must show that he or she suffers from mental
illness, which caused the defendant either to not know what he or she was doing or to not
understand that the conduct was wrong. § 775.027, Fla. Stat. (2007).
                                             7
rendered ineffective assistance of counsel in Jackson’s case. 7 As the trial judge noted,

however, an attorney’s testimony is not dispositive of the issue. See Breedlove v. State,

692 So. 2d 874, 877 n.3 (Fla. 1997).

       Central to the postconviction court’s decision was its conclusion that Jackson’s

insanity defense effectively negated his claim of self-defense. The defenses of insanity

and self-defense can be presented together if the evidence of insanity helps to explain

why the defendant believed his or her life was in imminent danger. See, e.g., Martin v.

State, 110 So. 3d 936, 939 (Fla. 1st DCA 2013); Wallace v. State, 766 So. 2d 364, 371

(Fla. 3d DCA 2000). The presentation of potentially inconsistent defenses becomes

problematic, though, when the presentation of one defense effectively negates the other

defense. But cf. Hannon v. State, 941 So. 2d 1109, 1139 (Fla. 2006) (finding no ineffective

assistance of counsel for failure to present additional defense when that defense was

inconsistent with defendant’s primary defense).

       In contemplation of presenting an insanity defense, Manuel initially had Dr. Jeffrey

Danziger appointed to evaluate Jackson’s mental health. 8 Dr. Danziger examined



       7 Manuel testified that the error she most regretted was allowing Jackson’s family
to influence her decisions. She testified that they pressured her to pursue an insanity
defense, which clouded her judgment. Manuel stated that the family was in her office
constantly, and they insisted that she present the insanity defense. However, the record
demonstrates that Jackson was in regular communication with his family and acquiesced
to the decisions made by Manuel. Jackson, in fact, requested Manuel to pursue the
insanity defense.
       8 According to the record, Dr. Danziger was appointed pursuant to Florida Rule of
Criminal Procedure 3.216, but this rule does not apply to defendants represented by the
Public Defender’s Office. Nevertheless, this Court has reasoned that the same attorney-
client privilege created by rule 3.216 applies to all experts retained specifically to aid in
the preparation of defense at trial. See Manuel v. State, 162 So. 3d 1157, 1160 (Fla. 5th
DCA 2015) (“The rule contemplates that mental health experts appointed by the trial court
for the purpose of determining the competency of indigent or partially indigent defendants
are beholden to the attorney-client privilege. Although not expressly stated, the same
                                             6
Jackson and prepared a report finding that “[Jackson] was sane at the time of the offense

and it is my opinion he did not meet the insanity criteria.” Later, when the State moved to

have its own experts appointed to examine Jackson and included Dr. Danziger as one of

those experts, Manuel did not object because she did not remember that Dr. Danziger

had previously evaluated Jackson. The prior communication between Jackson and Dr.

Danziger was protected by the attorney-client privilege, and Manuel should have objected

to the State’s appointment of Dr. Danziger as its expert.

       At trial, Manuel introduced the insanity defense through the testimony of Dr.

Charles English, a clinical psychologist. The postconviction court determined that,

“Despite having no evidence of insanity, counsel decided to pursue an insanity defense

which had no hope of succeeding and, in fact, led to damaging testimony against the

Defendant.” While it is true that Dr. English did not parrot the Florida legal standard for

insanity, sometimes referred to as a modified M’Naghten standard, 9 Dr. English testified

that Jackson “had a psychotic breakdown that caused him to believe the victim was going

to kill him.” He also testified that Jackson was delusional and was hallucinating at the time

of the shooting. Dr. English opined that Jackson was temporarily insane at the time of the

incident. While the State’s experts disagreed with Dr. English, and the jury did not accept

Jackson’s insanity defense, the postconviction court’s conclusion that no evidence of

insanity was presented is not supported by the record.




must be true for experts privately retained for a similar purpose without the assistance of
the trial court.”).
       9  Under Florida law, the defendant must show that he or she suffers from mental
illness, which caused the defendant either to not know what he or she was doing or to not
understand that the conduct was wrong. § 775.027, Fla. Stat. (2007).
                                             7
       The State called Dr. Danziger to rebut Dr. English’s testimony as a witness at trial.

Manuel’s only objection was to prohibit the State from mentioning that Dr. Danziger had

originally been retained by the defense. Manuel did not object to the fact that Dr.

Danziger’s report was based on information gained during the course of a confidential

interview. Dr. Danziger testified that Jackson said during the interview that he thought he

could not leave the cab, and he realized the police were on the way. Jackson told Dr.

Danziger that he knew he could be arrested and go to prison, so he tried to escape. He

said he pulled the trigger after realizing he could go to prison for having a firearm. This

version of events conflicted with Jackson’s theory of self-defense. Manuel failed to protect

Jackson’s attorney-client privilege and as a result allowed damaging, confidential

information to come into evidence. Manuel’s failure to preserve Jackson’s attorney-client

privilege constituted deficient performance of counsel.

       Additionally, there is evidence from the postconviction hearing that despite her

years of experience, Manuel had an incorrect understanding of the burden of proof for the

insanity defense. At the hearing, Manuel appeared unaware that the burden of proof for

insanity is clear and convincing evidence. Manuel also testified that she believed a

burden-shifting framework applied to the insanity defense, although she later clarified that

she knew that insanity was an affirmative defense. 10

       Based on Manuel’s failure to preserve Jackson’s attorney-client privilege, and her

misunderstanding of Florida law on insanity, we agree with the postconviction court that

Manuel rendered ineffective assistance of counsel under the first prong of Strickland. The

more difficult issue is whether Jackson established prejudice under the second prong of



       10At trial, Manuel stated in her closing argument that the burden was on the State
to prove Jackson’s sanity beyond a reasonable doubt.
                                             8
Strickland, which requires Jackson to demonstrate that but for the ineffective assistance

of counsel, there was a reasonable probability that the result at trial would have been

different. 466 U.S. at 694. In evaluating the prejudice prong, this Court has a duty to

conduct an independent review of the lower court’s legal conclusions, without particular

deference, to ensure the consistent application of constitutional principles across all

appellate cases. See Stephens v. State, 748 So. 2d 1028, 1031-34 (Fla. 1999)

(reaffirming an appellate court’s duty to scrutinize conclusions of law in the context of

ineffective assistance claims).

       We find that Jackson did not establish prejudice because the evidence against him

was overwhelming, and his claim of self-defense was internally inconsistent. To be

justified in using deadly force, the person must “reasonably believe[] that . . . [deadly]

force is necessary to prevent imminent death or great bodily harm to himself or herself.”

§ 776.012(2), Fla. Stat. (2007). Jackson admitted that he got into the cab with a gun, a

box of ammunition, Mace, and latex gloves. He claimed that Felix became so enraged

over a ten-dollar fare that he locked Jackson in the car, and grabbed and strangled him—

although Jackson also acknowledged that Felix told him he was going to call the police.

Despite hearing the police sirens and knowing the police would be on the scene

momentarily, Jackson nonetheless shot Felix and took his wallet, cell phone, and keys to

the cab.

       Jackson admitted that he fled the scene and that he buried the stolen items along

with his bloody clothes, hoping that the items would never be discovered. He offered no

explanation at trial for taking Felix’s cell phone or the keys to the cab. We do not believe,

given all of the incriminating evidence and the inconsistency between Jackson’s stated




                                             9
motivation and his actions, that there is a reasonable probability that a jury would find that

Jackson’s use of force was justified.

       We understand the postconviction court’s inclination to award Jackson a new trial

based on the admitted ineffectiveness of his trial counsel, but Strickland requires Jackson

to show that such errors prejudiced the result in this case. We have reviewed the record

exhaustively and are unable to conclude, given the overwhelming evidence of guilt, that

Jackson has met that burden. Thus, the court erred in vacating Jackson’s conviction.

      REVERSED and REMANDED for reinstatement of Jackson’s conviction and
sentence.

LAMBERT, J., and LEMONIDIS, R., Associate Judge, concur.




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