                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

WARREN KILPATRICK,                      NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Appellant,                        DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D14-0723

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed August 12, 2014.

An appeal from the Circuit Court for Wakulla County.
Charles W. Dodson, Judge.

Warren Kilpatrick, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Kristen Lynn Bonjour, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      The appellant, Warren Kilpatrick, appeals the denial of his pro se Florida

Rule of Criminal Procedure 3.850 motion for post-conviction relief following an

evidentiary hearing. He argues that his trial counsel was ineffective for failing to

investigate and call a certain witness at trial. Finding the appellant’s arguments

without merit, we affirm.
      At the post-conviction hearing, the appellant’s trial counsel testified that he

had interviewed the witness before trial and had determined that she intended to

offer false testimony in order to help the appellant. Trial counsel testified that he

was ethically prohibited from offering false testimony to the court. See Florida

Rule of Professional Conduct 4-3.3(a)(4). Trial counsel also testified that he was

advised by the witness’s own attorney that the witness would not be allowed to

take the stand and perjure herself.

      The trial court denied the appellant’s post-conviction motion, finding that

trial counsel was not ineffective because the witness was not available to testify

and, even if the witness had taken the stand and exercised her Fifth Amendment

privilege, this would not have created a reasonable probability sufficient to

undermine confidence in the outcome of the case.

      We review the trial court’s factual findings for competent, substantial

evidence and its legal conclusions de novo. See Stephens v. State, 748 So. 2d

1028, 1033 (Fla. 1999). This Court will not substitute its judgment for that of the

trial court on questions of fact, the credibility of witnesses, or the weight given to

the evidence. See Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997).

      The framework for analyzing claims of ineffective assistance of counsel was

articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984):

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
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      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must show
      that the deficient performance prejudiced the defense. This requires
      showing that counsel’s errors were so serious as to deprive the
      defendant of a fair trial, a trial whose result is reliable. Unless a
      defendant makes both showings, it cannot be said that the conviction .
      . . resulted from a breakdown in the adversary process that renders the
      result unreliable.

      Here, the trial court properly denied the appellant’s post-conviction motion

as he failed to meet the Strickland prongs. Trial counsel’s decision not to call the

witness was proper. The witness was effectively unavailable for trial based on trial

counsel’s reasonable belief that she would present perjured testimony. See Nelson

v. State, 73 So. 3d 77, 88 (Fla. 2011) (stating that the unavailability of a witness

will preclude a defendant from establishing deficient performance or prejudice).

      AFFIRMED.

WOLF and ROWE, JJ., and PARKER, GREGORY S., ASSOCIATE JUDGE,
CONCUR.




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