       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 15, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-2478
                         Lower Tribunal No. 12-12385
                             ________________


                            The State of Florida,
                                    Appellant,

                                        vs.

                                Stanford Ellis,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Alberto Milian,
Judge.

     Ashley Moody, Attorney General, and Marlon J. Weiss and Michael W.
Mervine, Assistant Attorneys General, for appellant.

     Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third
Region and Kristen Kawass, Assistant Regional Counsel, for appellee.


Before EMAS, C.J., and SALTER, J., and LEBAN, Senior Judge.

     PER CURIAM.
      The State of Florida appeals an order granting postconviction relief1 to

Stanford Ellis (“Ellis”) following an evidentiary hearing. We affirm the order,

finding competent, substantial evidence in the record establishing Ellis’s trial

counsel’s ineffectiveness for failing to file a pretrial motion to dismiss based upon

pre-arrest   delay,   and   upon     counsel’s   constitutionally   deficient   pretrial

investigation.

      The trial court’s closely reasoned 34 page order describes a one-witness case

in which Ellis was convicted of two counts of misdemeanor battery and one count

of false imprisonment, all as lesser-included offenses of aggravated battery on a

pregnant victim, domestic battery by strangulation, and kidnapping. There was no

physical or testimonial evidence presented at trial to corroborate the alleged

victim’s version of what occurred.

      The alleged criminal incidents occurred May 13, 2011. The alleged victim

made a report to the Miami-Dade Police Department two days later, but Ellis was

not arrested until a year later. The victim’s report and later testimony disclosed

numerous material inconsistencies and differing accounts of the alleged criminal

incidents.

      At trial in November 2012, the jury convicted Ellis on all three lesser

included offenses rather than the charged offenses. The conviction and sentence

1 The defendant in the underlying criminal case, Ellis, had served his sentences
and was at liberty when the order was entered.

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were affirmed in a citation per curiam opinion in August 2014; Ellis v. State, 145

So. 3d 216 (Mem.) (Fla. 3d DCA 2014).

      Ellis filed the subject postconviction motion in July 2015 (and a pro se

amendment shortly after that). The trial court appointed the Office of Criminal

Conflict and Civil Regional Counsel to represent Ellis. Appointed counsel filed

two amendments to the postconviction motion, ultimately asserting six claims, and

the matter was set for an evidentiary hearing.

      The trial court heard the testimony of two of the public defenders for Ellis; a

bank employee with knowledge of the surveillance video system operated by the

bank where, according to the victim’s trial testimony, Ellis compelled her to

attempt to withdraw funds; a motel manager for the motel where the alleged

criminal incidents occurred; and the defendant.

      The trial court granted the postconviction motion based on three claims of

ineffective assistance: (1) defense counsel’s inability to investigate the bank branch

and drug store surveillance video that might have corroborated or disproven the

alleged victim’s account of the incidents, and failure to file a motion to dismiss

based upon the prejudice resulting from the prearrest delay (loss of prospectively-

exculpatory video recordings); (2) the duty to investigate the crime scene (and in

this case, the motel’s check-in records for the dates in question); and (3) counsel’s




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failure to impeach the victim and failure to investigate an alibi. The State’s appeal

followed.

      Analysis

      On appeal from the order granting Ellis’s postconviction claims of

ineffective assistance by defense counsel, we apply a mixed standard of review.

We defer to the trial court’s factual findings based on competent, substantial

evidence in the underlying case and in the evidentiary hearing on the

postconviction motion. See Hoskins v. State, 75 So. 3d 250, 253-54 (Fla. 2011).

The trial court’s conclusions of law are reviewed de novo. See id. at 254.

      The standard for prevailing on these claims is established in Strickland v.

Washington, 486 U.S. 668 (1984). Ellis had the initial burden to identify specific

acts or omissions demonstrating that defense counsel’s performance was

unreasonable under prevailing professional norms. See Hoskins, 75 So. 3d at 253-

54. Defense counsel’s performance before and during trial must be shown to have

been “so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.

      Next, Ellis was required to prove that he was prejudiced by the deficient

performance of his trial counsel. Id. To succeed under the prejudice prong, the

defendant must show that “there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A



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reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. “In assessing prejudice, courts must consider the totality of

the evidence presented in postconviction, along with the evidence adduced at trial,

to determine whether there is a reasonable probability that the outcome would have

differed.” Ciambrone v. State, 128 So. 3d 227, 230 (Fla. 2d DCA 2013).

      The evidence presented during the postconviction hearing disclosed that the

bank destroyed its digital surveillance video recordings after 90 days, and that the

drug store did so after 30 days. Actual prejudice was demonstrated, because the

recordings were potentially exculpatory2 and the State provided no explanation for

the yearlong delay between the victim’s report and the filing of the case (initiating

defense counsel’s investigation of the alleged incidents). There is a reasonable

probability that the case may have been dismissed based on that delay, the failure

to secure the video recordings and motel records, and the resulting prejudice to

Ellis’s defense.

      The motel manager’s testimony established that, had defense counsel

investigated the motel records, it would have shown that neither Ellis nor the

victim was at the motel on the date of the criminal acts alleged to have occurred


2  We reject the State’s argument that Ellis’s claims are merely speculative
regarding what might have been shown by the bank and drug store video
recordings had they been preserved. A negative inference cannot be drawn against
a defendant based on the State’s failure to secure evidence. See Fleming v. State,
624 So. 2d 797, 798-99 (Fla. 1st DCA 1993).

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there. It was also established that defense counsel did not investigate the victim’s

alleged pregnancy or Ellis’s alibi that he was still at the drug treatment center on

the day of the alleged incidents.

      Considering the effects of these lapses on Ellis’s ability to impeach the

credibility of the alleged victim (who was the sole witness to provide evidence

against Ellis at trial), the postconviction court properly concluded that counsel’s

deficient performance caused prejudice and that there exists a reasonable

probability the result of the proceedings would have been different had the lapses

not occurred. Under the test articulated in Rodgers v. State, 511 So. 2d 526, 531

(Fla. 1987), defense counsel’s failure to move for dismissal (based on the delay

between the alleged commission of the crime and the defendant’s arrest), amounts

to a due process violation.

      The trial court also correctly concluded that Ellis was entitled to relief under

Lee v. State, 899 So. 2d 348 (Fla. 2d DCA 2005), an analogous case in which (a)

there was no strategic reason for defense counsel’s failure to investigate, and (b)

the State’s case rested entirely on the alleged victim’s testimony.

      Affirmed.




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