          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D18-3108
                 _____________________________

TAMIKA REESE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.

                          June 12, 2019


WETHERELL, J.

    Tamika Reese appeals the order summarily denying her
motion for postconviction relief under Florida Rule of Criminal
Procedure 3.850. We affirm.

                          Background

    Reese was convicted of multiple felony offenses 1 arising out of
a home invasion robbery during which Reese shot one victim and



    1    Burglary of a dwelling with person assaulted (count I),
robbery (count II), attempted armed robbery with a firearm (count
III), false imprisonment with a firearm (count IV), aggravated
her co-defendant attacked another victim. Reese was sentenced to
life in prison as a prison releasee reoffender (PRR) for burglary and
concurrent sentences ranging from time-served to 25 years for the
other offenses. Reese’s judgment and sentence were per curiam
affirmed on direct appeal. See Reese v. State, Case No. 1D14-2229,
229 So. 3d 323 (Fla. 1st DCA 2016) (table).

     Reese filed a timely rule 3.850 motion in which she raised six
claims of ineffective assistance of counsel and one claim of
cumulative error. The trial court summarily denied the motion on
the merits. Reese filed a timely motion for rehearing, which the
trial court denied. This appeal followed.

                  Applicable Legal Standard

     To prove a claim of ineffective assistance of counsel, the
defendant must establish that (1) defense counsel’s performance
was deficient and (2) the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish deficient performance, the defendant must overcome the
strong presumption that counsel’s conduct was reasonable and
show that the conduct fell below an objective standard of
reasonableness based on prevailing professional standards. Id. at
688-89; see also id. at 687 (“[The deficient performance prong]
requires showing that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed by the Sixth
Amendment.”). To establish prejudice, the defendant must show a
reasonable probability—i.e., a probability sufficient to undermine
confidence in the outcome—that the result of the proceeding would
have been different but for counsel’s unprofessional errors. Id. at
694; see also id. at 687 (“[The prejudice prong] requires showing
that counsel’s errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.”).

                             Analysis

    We fully agree with the trial court’s analysis of claims 1, 3, 6,
and 7, and we affirm the denial of those claims without further

battery with a firearm (count V), battery (count VI), and possession
of a firearm by a convicted felon (count VII).

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comment. We affirm the denial of the other claims for the reasons
that follow.

                              Claim 2

     In claim 2, Reese alleged that her trial counsel was ineffective
for not presenting mitigating evidence at trial. The trial court
correctly found this claim to be refuted by the record (based on a
colloquy between the court and Reese at trial) and legally
insufficient (because “[m]itigating evidence is not admissible at
trial, only at sentencing”).

     In her motion for rehearing, Reese clarified that this claim
also alleged that her counsel was ineffective for not presenting
mitigating evidence at sentencing. Even with this clarification, the
claim was properly denied because Reese cannot show prejudice
since the trial court was required to impose a life sentence for the
burglary under the PRR statute irrespective of any mitigating
evidence that might have been presented. See Ellington v. State,
96 So. 3d 1131, 1131-32 (Fla. 1st DCA 2012) (“It is well-settled
that, once the State proves by a preponderance of the evidence that
a defendant qualifies as a [PRR], the trial court must sentence the
defendant in accordance with the provisions of section 775.082(9),
Florida Statutes. A trial court does not have discretion to depart
from the sentence mandated by section 775.082(9), and the refusal
to impose the mandatory minimum sentence is error as a matter
of law.”) (citations omitted).

                              Claim 4

     In claim 4, Reese alleged that her trial counsel was ineffective
for not asking the victim about his pending criminal charges to
show that he had a motive to testify that his attacker was a woman
(Reese) as the State claimed, and not a man as he originally told
the police. The trial court denied this claim, concluding that
counsel could not have attacked the victim’s credibility with the
pending charges.

     Contrary to the trial court’s reasoning, “when charges are
pending against a prosecution witness at the time he testifies, the
defense is entitled to bring this fact to the jury’s attention to show
bias, motive or self-interest.” Larkins v. State, 655 So. 2d 95, 99

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(Fla. 1995) (quoting Torres-Arboledo v. State, 524 So. 2d 403, 408
(Fla. 1988)). However, even if counsel was deficient for not asking
the victim about his pending charges, this claim was properly
denied because Reese cannot establish prejudice.

     Although trial counsel did not impeach the victim with his
pending charges, counsel extensively cross-examined the victim
about his drug use at the time of the offense (he admitted to
smoking marijuana the night before the attack) as well as his
original description of his attacker as a man (he explained that he
mistook the attacker for a man because she was smaller than the
co-defendant and was wearing men’s clothing), and counsel
emphasized the victim’s credibility issues during closing
argument. Additionally, counsel made the jury aware of the
victim’s pending charges by eliciting testimony from a police officer
about the victim’s arrest for drug offenses based on evidence found
during the officer’s investigation of this case, and counsel used this
fact in closing argument to further attack the victim’s credibility. 2
Under these circumstances, Reese cannot show that the outcome

    2   Specifically, counsel argued:

    Look at [the victim’s] situation. [He] is a drug dealer.
    He’s got marijuana not just not just in his possession, he’s
    got it up in his apartment and he sells it.

    In fact, [the police] charged him with possession of
    contraband for the purpose of sale. He’s a defendant.
    That case is still pending. Look what he’s doing. [He] is
    doing the same thing as [the co-defendant]. He’s trying
    to line up with the State, get his story where it kind of
    makes the State's case against [Reese] easier. . . . .

                              *   *     *

    [The victim] feels like he can come in here and get out of
    the mess that he’s in to deal with these pending charges,
    to stay out of jail or state prison, if he gets his story
    straight that it matches up with the prosecution in this
    case, which is built almost entirely . . . on the testimony
    of [the co-defendant].

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of the case would have been any different had trial counsel asked
the victim about his pending charges.

                              Claim 5

      In claim 5, Reese alleged that her trial counsel was ineffective
for failing to argue that her convictions for aggravated battery with
a firearm (count V) and battery (count VI) were barred by double
jeopardy. The trial court denied this claim as “meritless” because
the offenses contained different elements. We agree that this
claim is meritless, but for different reasons.

     The record reflects that counts V and VI were based on
different victims: count V was based on the victim shot by Reese
whereas count VI was based on the victim attacked by her co-
defendant for which Reese was convicted as a principal. It is
axiomatic that multiple battery convictions—whether simple or
aggravated—are legally permissible where multiple victims are
battered. See Williams v. State, 106 So. 3d 964, 966 (Fla. 3d DCA
2013). Accordingly, Reese cannot show deficient performance in
her counsel’s failure to argue that her dual battery convictions
violate double jeopardy. See Teffeteller v. Duggar, 734 So. 2d 1009,
1023 (Fla. 1999) (“Trial counsel cannot be deemed ineffective for
failing to raise meritless claims . . . .”).

                            Conclusion

    For the reasons stated above, we affirm the order denying
Reese’s rule 3.850 motion.

    AFFIRMED.

RAY and WINSOR, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Tamika Reese, pro se, Appellant.

Ashley Moody, Attorney General, and Anne C. Conley, Assistant
Attorney General, Tallahassee, for Appellee.




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