       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            JAMES AUGUSTE,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D14-2391

                              [June 3, 2015]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Ilona M. Holmes,
Judge; L.T. Case No. 10-665CF10A.

   Dane K. Chase of Chase Law Florida, P.A., St. Petersburg, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   Affirmed.

MAY and CONNER, JJ., concur.
WARNER, J., concurs specially with opinion.

WARNER, J., concurring specially.

   I concur in the affirmance of the order summarily denying the motion
for postconviction relief and write to note that, as to appellant’s second
ground, Puglisi v. State, 112 So. 3d 1196 (Fla. 2013) is not controlling.
Appellant contended that trial counsel was ineffective for calling a witness
whose testimony conflicted with the defendant, and that counsel’s strategy
was patently unreasonable. The court denied this claim, because it was
apparent that the appellant insisted on calling the witness, not trial
counsel (which appellant concedes on appeal). Therefore, it did not
amount to a strategic decision on the part of trial counsel.
   Appellant contends, however, that based upon Puglisi, the decision to
call witnesses was counsel’s responsibility, not the defendant’s. Therefore,
he could still claim ineffective assistance. In Puglisi, the supreme court
did so hold, receding from cases such as Blanco v. State, 452 So. 2d 520,
524 (Fla. 1984), which had held that the decision to call witnesses was
ultimately the defendant’s. Nevertheless, Puglisi does not apply in this
case, because appellant’s trial took place before Puglisi issued. Thus, a
Blanco analysis would apply and did give the appellant the ultimate
decision on which witnesses to call. See England v. State, 151 So. 3d 1132,
1141 (Fla. 2014). As he made the decision to call the witness, compelling
counsel to do so, this cannot constitute ineffective assistance of trial
counsel.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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