         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-2911
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STATE OF FLORIDA,

    Appellant,

    v.

ANTHONY SMITH,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Martin A. Fitzpatrick, Judge.

                         April 11, 2019


KETCHEL, TERRANCE R., ASSOCIATE JUDGE.

    The State appeals the postconviction court’s grant of Smith’s
3.850 motion. We reverse.

                             Facts

     Smith was charged and convicted in the armed robbery of
two victims while the victims waited in a Taco Bell drive-thru.
During trial, Smith testified on his own behalf. After other
questions, defense counsel asked Smith “Where were you that
night, if you know?” The State objected. At sidebar, the State
argued that defense counsel had not provided the proper notice of
alibi. Defense counsel explained she expected Smith’s answer to
be he really did not know, but he would have normally been with
his grandmother; she stated that she really did not expect Smith
to offer an alibi. Defense counsel then offered to withdraw the
question and to move to something else. She explained she was
not exactly sure what answer Smith would give and “he might go
on . . . he has a tendency to talk a lot.”

     The jury convicted Smith of armed robbery and simple
robbery. This Court per curiam affirmed his direct appeal, and
he moved for post-conviction relief under rule 3.850. Relevant
here,    Smith argued that trial counsel was ineffective for
withdrawing her alibi question because there was no requirement
a defendant file a notice of intent if it is the defendant testifying
to an alibi; and he also argued defense counsel was ineffective for
failing to investigate and call his grandmother as a witness to
support the alibi.

    Defense counsel testified at the evidentiary hearing that
Smith had told her about his grandmother, and that she had
investigated but concluded that the alibi was not a good alibi. As
to withdrawing her question, counsel explained her intent was to
sneak the alibi idea in without focusing on it; she felt the alibi, in
general, was weak. When the State objected, she felt it did not
matter because she was worried Smith would continue to talk
and say something that would hurt his case.

     The postconviction court granted Smith’s motion as to the
claim defense counsel was ineffective for withdrawing the
question after she asked it. The State now appeals.

               Ineffective Assistance of Counsel

     Ineffective assistance of counsel requires both deficiency and
prejudice. Bettey v. State, 244 So. 3d 364, 366 (Fla. 1st DCA
2018) (citing Strickland v. Washington, 466 U.S. 668, 690, 694
(1984)); see Hurst v. State, 18 So. 3d 975, 996 (Fla. 2009) (noting
that failure of either prong precludes relief). We review de novo
the postconviction court’s legal conclusions regarding whether the
facts it finds show both deficiency and prejudice. State v.
Dickson, 89 So. 3d 277, 279 (Fla. 1st DCA 2012).




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                           Deficiency

     Deficiency requires that counsel was not really functioning
as “counsel” guaranteed by the Sixth Amendment; i.e.,
performance “outside the wide range of reasonable professional
assistance.” Betts v. State, 792 So. 2d 589, 590 (Fla. 1st DCA
2001).     This Court is “highly deferential” to counsel’s
performance; it will not second-guess tactical or strategic
decisions. Pietri v. State, 885 So. 2d 245, 252 (Fla. 2004); see
State v. Barnes, 24 So. 3d 1244, 1249 (Fla. 1st DCA 2009). The
standard looks for “reasonably effective assistance.” Strickland,
466 U.S. at 687.

     The deficiency question here is whether the improper
objection by the State * and the resulting sidebar discussion with
the court that led defense counsel not to pursue the alibi question
was “reasonably effective assistance” by defense counsel. See
Strickland, 466 U.S. at 687. Here, defense counsel’s consistent
statements (both during the trial sidebar and the post-conviction
hearing) revealed she withdrew her question due to strategy: she
stated that she did not want to ask Smith an open-ended
question because Smith had a tendency to talk, and she feared he
would say something that would hurt his case, even if
unintentionally. Such strategic reasoning is not “outside the
wide range of reasonable professional assistance.”

     In addition, there is no support for Smith’s contention that
defense counsel failed to pursue the alibi question because she
lacked knowledge of the rule permitting her to ask the question.
In fact, counsel testified at the evidentiary hearing to her
reasons: she did not want to ask an open-ended question and
feared what Smith might say in response; thus, she was fine—
strategically—with withdrawing the question.

    Accordingly, we find the trial court erred in concluding
defense counsel’s performance was deficient.

    * The State’s objection was clearly improper. Fla. R. Crim. P.
3.200 (stating a court cannot exclude a defendant’s own alibi
testimony for failure to file and serve proper notice of an alibi
defense).

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                           Prejudice

     Prejudice requires “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different”—“a probability sufficient to
undermine confidence in the outcome.” Hunter v. State, 817 So.
2d 786, 794 (Fla. 2002). Counsel’s error(s) must have had more
than “some conceivable effect on the outcome of the proceeding.”
Strickland, 466 U.S. at 693.

     Even if counsel’s performance was deficient, there is no
“reasonable probability” the results of the trial would have been
different if Smith had been allowed to answer the question
“Where were you that night?” See Hunter, 817 So. 2d at 794
(defining prejudice). Smith’s self-serving statement that he was
at his grandmother’s would not likely have led to a different
result, particularly considering that the grandmother would not
have been called as a witness to corroborate. It is unlikely the
jury would have believed Smith’s testimony concerning his
whereabouts when it rejected his testimony that he did not
commit the crime, when other evidence, including DNA evidence,
indicated otherwise. Furthermore, defense counsel explained
Smith’s testimony was expected to be vague anyway—that he did
not recall the night specifically, but he was generally always at
his grandmother’s. This is in addition to the potential for other
harmful testimony that Smith may have said if he was allowed to
answer an open-ended question, which was defense counsel’s
stated strategic concern.

    Thus, Smith did not undermine confidence in the outcome,
and the postconviction court erred in its legal conclusion Smith
showed prejudice.

                          Conclusion

     Smith did not show defense counsel’s performance was
deficient in that defense counsel made a strategic decision to not
permit Smith to answer an open-ended question. Even if it was
deficient, however, Smith did not show that this error
undermined confidence in the outcome or created a reasonable
probability the result of the trial would have been different.


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    Accordingly, for each of these reasons the trial court erred in
granting Appellant’s 3.850 motion.          The order granting
Appellant’s 3.850 motion is REVERSED.

B.L. THOMAS, C.J., and WINOKUR, J., 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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Eddie D. Evans, Assistant State Attorney, Tallahassee; Ashley
Moody, Attorney General, and Amanda D. Stokes, Assistant
Attorney General, Tallahassee, for Appellant.

No appearance for Appellee.




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