         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

JASON SCOTT DOWNS,

             Appellant,

 v.                                                     Case No. 5D16-3535

STATE OF FLORIDA,

           Appellee.
________________________________/

Opinion filed September 1, 2017

3.850 Appeal from the Circuit
Court for Brevard County,
Charles J. Roberts, Judge.

Jason S. Downs, Melbourne, pro se.

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

PER CURIAM.

      Jason Downs was charged with showing obscene material to a minor (count one),

forcing or enticing a minor to commit a lewd or lascivious act (count two), and knowingly

committing a lewd or lascivious act in the presence of a minor (count three). The evidence

against Downs consisted of the child victim’s allegations of what occurred while Downs

was babysitting the victim. Downs was acquitted of count one, but he was convicted of

counts two and three. His convictions were affirmed on direct appeal. Downs v. State,

823 So. 2d 789 (Fla. 5th DCA 2002).
      Downs now appeals from the denial of his motion for postconviction relief timely

filed pursuant to Florida Rule of Criminal Procedure 3.850. 1 Downs’s motion raised four

grounds of ineffective assistance of his trial counsel: (1) counsel’s failure to assert a

defense theory; (2) counsel’s failure to investigate or call exculpatory witnesses; (3)

counsel’s advice to reject a favorable plea offer; and (4) counsel’s refusal to allow Downs

to testify on his own behalf. The postconviction court summarily denied grounds one and

two, and denied grounds three and four after an evidentiary hearing. Because the record

attachments do not conclusively refute the claims made in grounds one and two, we

reverse and remand for an evidentiary hearing or for record attachments conclusively

refuting those claims. We affirm the denial of grounds three and four without further

discussion.

      In ground one of his motion, Downs argued that his trial counsel never interviewed

him or asked for his version of events, did not interview or investigate the State’s

witnesses, and did not present a defense theory at trial. Downs claimed that counsel’s

sole strategy “was to preserve the opportunity to twice speak in closing arguments, the

so-called argument ‘sandwich.’” 2 Downs relies on Cole v. State, 700 So. 2d 33 (Fla. 5th




      1 In 2014, this Court reversed the summary denial of Downs’s petition to file a
belated motion for postconviction relief, finding it was timely filed pursuant to the
prospective application of rule 3.850(b)(3). Downs v. State, 135 So. 3d 521 (Fla. 5th DCA
2014). The postconviction court subsequently granted the petition.
      2 The “sandwich” argument was the defense’s ability to give first and last closing
argument if the defense presented no evidence; the defense retained the “sandwich”
argument if the defense only presented the testimony of the defendant. This process was
delineated in Florida Rule of Criminal Procedure 3.250, which was in effect at the time of
Downs’s trial; the Florida Supreme Court subsequently adopted Florida Rule of Criminal
Procedure 3.381, “confirming that the State is entitled to opening and rebuttal closing
arguments even if the defense presents no case-in-chief.” Beasley v. State, 18 So. 3d


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DCA 1997), in which this Court disapproved of the same trial strategy and found that

counsel’s performance was per se deficient. 3

       The postconviction court noted that Downs’s counsel told him that the trial strategy

“was to not call any witnesses for the defense and to not perform any sort of pretrial

investigation,” but Downs retained him anyway. The court found that counsel pursued the

defense that the victim fabricated the allegations to gain his mother’s attention. The court

found that although counsel did not depose or investigate the State’s witnesses, counsel

was aware of their statements prior to trial based on the child victim hearsay hearing and

“vigorously argued against the admissibility of those hearsay statements.” The court also

found that counsel effectively cross-examined the State’s witnesses and noted the lack

of physical evidence against Downs. Counsel also successfully moved to exclude a

videotaped interview with the victim, obtained a judgment of acquittal on count one, and

secured a downward departure, youthful offender sentence and a withhold of

adjudication. Thus, based on the totality of the representation, the court summarily denied

this claim, finding that Downs failed to demonstrate prejudice.

       As an initial matter, “[a] client’s acquiescence in trial counsel’s conduct does not

necessarily insulate the lawyer’s performance from judicial review in a postconviction

proceeding.” Evans v. State, 737 So. 2d 1167, 1168 (Fla. 2d DCA 1999). Thus, the

postconviction court’s finding that Downs knew about counsel’s trial strategy and



473, 492 n.5 (Fla. 2009) (citing In re Amends. to Fla. Rules of Crim. Proc.-Final
Arguments, 957 So. 2d 1164, 1166–67 (Fla. 2007)).
       3  The attorney in Cole was the same attorney who represented Downs during his
trial. In Cole, this Court noted that counsel “had a blanket policy regarding first and last
closing argument without examining the circumstances and potential defenses of each
case.” Cole, 700 So. 2d at 36.


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“nevertheless retained him for representation” is unavailing. In addition, the record

attachments do not conclusively refute Downs’s claim that counsel pursued a blanket trial

strategy and failed to interview or depose the State’s witnesses. The court acknowledged

that Downs’s counsel did not investigate or depose the State’s witnesses but concluded

that counsel effectively cross-examined the witnesses and noted the lack of physical

evidence against Downs. However, these findings do not refute Downs’s claim that his

counsel failed to investigate his defense theory that he could not have committed the

crimes. Therefore, we reverse and remand ground one either for attachment of records

conclusively refuting this claim or for an evidentiary hearing.

       In ground two, Downs alleged ineffective assistance of trial counsel for failing to

investigate, interview, or depose any defense witnesses. Specifically, Downs claimed that

his trial counsel should have deposed his parents and his prior girlfriend, all of whom

would have corroborated his defense that he was never alone with the victim. Downs also

argued that counsel was ineffective for failing to depose or investigate the victim’s sister.

He argued that he was prejudiced by this failure because counsel was unable to

corroborate his defense theory. Thus, he claimed that because of trial counsel’s

deficiency, he was found guilty of crimes that he did not commit.

       “[F]ailure to investigate or call an exculpatory witness ‘presents a prima facie

showing of entitlement to relief, subject to rebuttal by evidence from the record or

testimony at an evidentiary hearing.’” Honors v. State, 752 So. 2d 1234, 1235–36 (Fla.

2d DCA 2000) (quoting Prieto v. State, 573 So. 2d 398, 399 (Fla. 2d DCA 1991)). Downs

alleged that the victim’s sister was always present when he was babysitting. In denying

this claim, the court relied on the victim’s mother’s testimony that her daughter was at a




                                             4
school dance when the incident occurred, but the court also found in a different portion of

its order that a detective testified that the victim’s sister was in the home at the time of the

incident. Downs’s motion raises a facially sufficient claim by alleging that counsel was

deficient in failing to investigate, depose, or call the victim’s sister as a witness, and that

he was prejudiced by such failure because that testimony could have corroborated his

defense theory that he was never alone with the victim and could not have committed the

crimes as alleged.

       In addition, Downs also claims that his former girlfriend “was always present when

[he] was caring for the children.” He claimed that she would have corroborated his

defense that he was never alone with the victim, and therefore he had no opportunity to

commit the crimes. Again, the postconviction court relied on the victim’s mother’s

testimony in denying this claim. However, the mother’s testimony does not refute Downs’s

allegation that the girlfriend could have provided exculpatory testimony, and that Downs’s

trial counsel was deficient in failing to investigate this potential witness. Because this

facially sufficient claim was not refuted by the records attached to the postconviction

court’s order, summary denial of ground two was improper. See Santos v. State, 152 So.

3d 817, 819 (Fla. 5th DCA 2014) (“The failure to call a witness can constitute ineffective

assistance of counsel if the witness might be able to cast doubt on the defendant’s guilt.

Although defense counsel is entitled to broad deference regarding trial strategy, a finding

that some action or inaction by defense counsel was tactical is generally inappropriate

without an evidentiary hearing.” (citations omitted)); Honors, 752 So. 2d at 1235–36 (“The

failure to call a witness who could have provided exculpatory evidence constitutes

ineffective assistance of counsel if the testimony may have cast doubt on the defendant’s




                                               5
guilt and the defendant states the witness’s name, the substance of the testimony, and

how the omission of that testimony prejudiced the outcome of the trial.”). Therefore, we

reverse the summary denial of grounds one and two and remand for the postconviction

court either to attach records conclusively refuting these claims or to hold an evidentiary

hearing.

      AFFIRMED IN PART, REVERSED IN PART; AND REMANDED.

COHEN, C.J., PALMER and EISNAUGLE, JJ., concur.




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