final until disposition of timely filed motion for rehearing.
Appeal under Florida Rule of Appellate Procedure 9.141(b)(2)
from the Circuit Court for Miami-Dade County No. 14-8053,
Ellen Sue Venzer, Judge.
Molina, in proper person.
Jo Bondi, Attorney General, for appellee.
ROTHENBERG, C.J., and FERNANDEZ and LUCK, JJ.
Molina ("the defendant") appeals the trial
court's order denying his motion for postconviction
relief in which he raised two grounds of ineffective
assistance of trial counsel: (1) the failure of his trial
counsel to request a presentence investigation prior to the
imposition of sentence; and (2) the failure of his trial
counsel to correct the plea agreement the defendant signed,
which the defendant claims does not reflect the terms his
lawyer had told the defendant he would be accepting pursuant
to the negotiated plea. We affirm.
record reflects that after sexually assaulting his
stepdaughter on numerous occasions over a two-year period
beginning when his stepdaughter was approximately thirteen
years old, the defendant, accompanied by his pastor, turned
himself in to the police and confessed to committing the
following sexual acts upon the victim: (1) sucking the
victim's breasts, performing oral sex (his mouth to her
vagina) on the victim, and digitally penetrating the
victim's vagina at least ten times; and (2) having
penile/vaginal intercourse with the victim at least twenty
times. Upon making these admissions, the defendant was
arrested and charged with thirty counts of lewd and
lascivious battery and thirty counts of lewd and lascivious
molestation. Thereafter, the State filed an information
charging the defendant with seven counts of sexual activity
with a child by a person with familial or custodial
authority, first degree felonies, each punishable up to
thirty years in prison.
on negotiations with the State, the State and the defendant
agreed that the State would file an amended information
charging the defendant with seven counts of aggravated child
abuse, rather than seven counts of sexual activity with a
child by a person with familial or custodial authority, so
that the defendant would not be designated a sexual predator;
and the defendant would plead guilty to the seven counts of
aggravated child abuse, be sentenced to ten years in prison
followed by ten years of probation, and as a special
condition of probation, the defendant would abide by all of
the conditions specially identified in a separate plea
agreement signed by the defendant. The defendant accepted
these terms, signed the written plea agreement, and after
being fully colloquied by the trial court, pled guilty to the
amended information, and was sentenced.
Defendant's Postconviction Claims
Failure to request a presentence investigation
defendant contends that his trial counsel provided
ineffective assistance of counsel by not requiring the trial
court to order and consider a presentence investigation
("PSI") prior to accepting the defendant's
negotiated plea. The defendant further asserts that a PSI
"may well have contained a recommendation for a
non-incarcerative sanction - which could have provided the
trial court with a legitimate basis to depart from the
plea-agreement." Although we agree with the defendant
that, as a first-time felony offender, he was entitled to
have a PSI conducted prior to the imposition of sentence,
see Fla. R. Crim. P. 3.170(a); Hardwick v.
State, 630 So.2d 1212, 1215 (Fla. 5th DCA 1994), we
conclude that the defendant has failed to allege and
demonstrate that his trial counsel's failure to request a
PSI resulted in any prejudice to him, as required under
Strickland v. Washington, 466 U.S. 668, 687 (1984).
we note that this was a negotiated plea, and the defendant
received the sentence he specifically negotiated for with the
State. The record reflects that prior to entering his plea,
the defendant was facing the possibility of a sentence
totaling 210 years of incarceration for committing seven
separate acts of sexual activity with a child by a person
with familial or custodial authority. Each separately charged
count carried a maximum sentence of thirty years in prison
and the requirement that the defendant, if convicted, must be
designated a sexual offender (sexual predator), which would
have required that he register as such and have to comply
with the numerous lifetime restrictions associated with that
based on the negotiations between defense counsel and the
State, the State agreed to reduce the charges to seven counts
of aggravated child abuse and the imposition of a sentence of
ten years of incarceration followed by ten years of probation
with the special conditions listed in the written plea
agreement. The agreed-upon resolution of the case was based
on the State's desire to shield the child victim from the
further trauma of a deposition and testifying at a trial; the
State's consideration of the mitigation evidence
presented by defense ...