FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Osceola County, Elaine A.
Lee White, Raiford, pro se.
Appearance for Appellee.
Lee White appeals the summary denial of his Florida Rule of
Criminal Procedure 3.850 motion for postconviction relief in
which he asserted ineffective assistance of trial counsel.
Following careful consideration, we affirm the denial of
Appellant's first, second, and fifth grounds for relief
without further discussion. However, for the reasons set
forth below, we reverse and remand on the remaining grounds
for further consideration with instructions to the
postconviction court either to attach records that
conclusively refute each remaining ground or to conduct an
was charged with first-degree murder with a firearm,
attempted first-degree murder with a firearm, and robbery
with a firearm. The jury found Appellant guilty of
third-degree murder, attempted first-degree murder, and
robbery. The jury made a special finding that Appellant did
not personally possess any firearms during the commission of
ground three, Appellant asserts that trial counsel was
ineffective for failing to timely object to the jury
receiving instructions that it could return a guilty verdict
for the lesser offense of third-degree felony murder.
Appellant claims that the elements of third-degree felony
murder were absent from the charging indictment, the evidence
at trial failed to support it and was actually contradictory,
and the underlying felony was never charged.
the charge conference, the State requested instructions on
third-degree felony murder. Appellant told trial counsel that
he did not want the jury instructed on any lesser offenses,
and trial counsel advised the court that the defense was not
requesting instruction on any lesser offenses. The State
persisted in its request, and the trial court found that it
was entitled to such an instruction. Appellant further states
that the evidence did not support a felony murder charge, as
there was no proof that the death of the victim was connected
to Appellant or his accomplice being involved in the purchase
or sale of cannabis. There is no requirement for the
indictment to charge Appellant with third-degree murder.
See Prevatt v. State, 89 So. 807, 807-08 (Fla.
1921). "Although third-degree felony murder is not a
necessarily included offense of first-degree murder, it is,
under certain circumstances and evidence, a proper permissive
lesser included offense of first-degree murder, requiring a
jury instruction to that effect." McCloud v.
State, 209 So.3d 534, 539 (Fla. 2017) (quoting Green
v. State, 475 So.2d 235, 236 (Fla. 1985)).
McCloud does not suggest that it is required to
separately charge the underlying felony. Id.
postconviction court denied ground three based on its finding
that there was evidence Appellant attempted to purchase
cannabis. The court attached records to support this finding.
If the record contained evidence to support the jury's
entire verdict, then counsel was not ineffective for failing
to object to those instructions. However, because the court
did not address or attach records regarding whether there was
evidence to support a finding by the jury that the
victim's death occurred in connection with the purchase
or sale of cannabis, we cannot determine if trial counsel
should have objected and whether that objection would likely
have been sustained. Accordingly, we reverse as to ground
three with instructions for the postconviction court to
attach records conclusively refuting Appellant's claim
that there was no evidence that the victim's death was
connected to Appellant's purchase of cannabis or to
conduct an evidentiary hearing on that point if necessary.
ground four, Appellant asserts that trial counsel was
ineffective for failing to properly prepare him to testify at
trial. He claims that without prior discussion, counsel first
told him he should testify on the morning before he took the
stand. Appellant further claims that the total preparation
consisted only of counsel telling him to look at the jury
while he testified. Appellant argues that trial counsel
should have warned him that the State would likely
cross-examine him, as it did, on several text messages that
gave the clear impression that Appellant intended to shoot
Patrick Bacon, the person who supplied marijuana for
Appellant to sell. Appellant claims that if he had been
properly advised, he would have chosen not to testify and the
prejudicial text messages would not have been in evidence.
postconviction court denied ground four, finding that trial
counsel used Appellant's testimony to prove he had no
intention and no motive to kill Bacon because Appellant made
his living selling the marijuana he obtained from Bacon, and
if Appellant killed Bacon, he would have no supply and no
income. The court found no prejudice to Appellant and implied
that this was effective trial strategy because the jury
convicted him of lesser charges and found he did not
personally possess, carry, display, or use a firearm. A
"trial strategy" evaluation typically requires an
evidentiary hearing. See Santos v. State, 152 So.3d
817, 819 (Fla. 5th DCA 2014). Furthermore, neither that
implicit trial strategy finding, nor the records attached,
directly address Appellant's claim that if trial counsel
had properly advised him, he would not have testified, which
would have kept the text messages out of evidence and would,
he argues, have likely led to his acquittal. Accordingly, we
reverse on ground four with instructions for the
postconviction court either to conduct an evidentiary hearing
or to attach records that conclusively refute all aspects of
Appellant's claims in ground four.
ground six, Appellant asserts cumulative error. Because we
are reversing and remanding as to grounds three and four, we
also reverse and remand on this ground. See ...