         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D16-1790
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WILLIAM GEORGE REDMOND, III,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Escambia County.
Edward P. Nickinson, III, Judge.

                          April 5, 2018


PER CURIAM.

     Following his four convictions—two for sexual battery, one
for assault, and the last for procuring another for prostitution—
William Redmond, III, alleged his trial counsel to be ineffective
based on three grounds. The trial court denied all three grounds
and, on appeal, we affirm.

    The victim, working as a prostitute, came to an agreement
with Redmond to perform certain sexual activities for a set price.
However, it soon became apparent that Redmond had no money.
Redmond refused to drop the victim off at her request, and, when
she attempted to get out of his vehicle, he snatched her back in
by her hair. He then made it clear that he was going to have sex
with the victim whether she wanted to or not—and then he did.
Redmond dropped the victim off at a bus stop after exchanging
phone numbers; he wanted to bring her money another day. Law
enforcement tracked the phone number to Redmond, who closely
resembled the description given by the victim. He also happened
to be in possession of the same vehicle described by the victim.
When confronted with outgoing phone calls from his phone to the
victim’s, Redmond explained that someone likely took his phone
in the middle of the night and called the victim, but quickly
returned the phone to Redmond before he ever found out it was
gone. The victim positively identified Redmond in a photo lineup.

     The State presented the testimony of Berenger Chan from
the Florida Department of Law Enforcement, who discussed his
analysis of several DNA swabs taken from the victim; Chan
found DNA of multiple individuals, excluding the victim.
Redmond was excluded as a contributor to one sample, included
as a possible contributor in several others, and a “match” to one
partial DNA profile. A report of Chan’s findings, including
statistics of the likelihood that DNA found belonged to Redmond,
was admitted into evidence without objection by the defense.

     Following the trial, the court asked if the parties were
prepared to proceed to sentencing. Redmond notified his counsel
that some of the prior convictions on the criminal scoresheet were
not his, but his brother’s, and that he did not want crimes he did
not commit to elongate his sentence. Defense counsel notified the
trial court of the situation, and the court reset sentencing so the
defense could fully investigate Redmond’s criminal history. When
Redmond returned to court for sentencing, he was served with a
notice of intent to seek habitual felony offender sentencing, and
subsequently sentenced as a habitual felony offender.

                                 I.

     Redmond’s postconviction motion alleged that his trial
counsel was ineffective for three reasons: 1) she requested a
continuance before sentencing, allowing the State time to serve
notice of its intent to seek habitual felony offender sentencing; 2)
she failed to adequately impeach the victim with prior testimony;
and 3) she failed to ensure that Chan was qualified to present
DNA evidence. The trial court summarily denied the first two
grounds, and we affirm as to these grounds without further
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comment. The trial court ordered an evidentiary hearing to hear
Redmond’s final claim.

     To demonstrate ineffective assistance of counsel, a defendant
must both: 1) overcome the presumption that his trial counsel’s
performance was not constitutionally deficient, and 2) show
prejudice by way of a reasonable probability that the result would
have been different absent this deficiency. See Strickland v.
Washington, 466 U.S. 668, 687 (1984); State v. Bright, 200 So. 3d
710, 730 (Fla. 2016); Rutherford v. State, 727 So. 2d 216, 220 (Fla.
1998).

     At the hearing, Redmond argued that there was insufficient
evidence at trial of Chan’s qualifications, including any
background working with statistics or genetics, any scientific
publications authored, or his experience working with the
database used to compute the probability statistics. In short,
Redmond argued that he had no idea whether Chan was qualified
or not.

     The trial prosecutor testified that Redmond’s trial counsel
had deposed Chan prior to trial, and questioned him extensively
on his qualifications and analysis. Because Redmond’s counsel
was aware of Chan’s sufficient experience and qualifications, the
prosecutor assumed, she did not make useless pro forma
objections, especially as the theory of defense was not
identification.

     The trial court denied Redmond’s claim, finding that he
presented no evidence that Chan was unqualified or that any
trial objections would have been sustained, and thus, that his
trial counsel was ineffective. We agree. In simply arguing that he
did not know whether or not Chan was qualified, Redmond
proved neither deficiency nor prejudice by his trial counsel.

    AFFIRMED.

WINOKUR, JAY, and M.K. THOMAS, JJ., concur.




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              _____________________________

   Not final until disposition of any timely and
   authorized motion under Fla. R. App. P. 9.330 or
   9.331.
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Deana K. Marshall, Law Office of Deana K. Marshall, P.A.,
Riverview, for Appellant.

Pamela Jo Bondi, Attorney General, and Sharon Traxler,
Assistant Attorney General, Tallahassee, for Appellee.




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