MICHAEL J. GILES, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Leon County. James O.
S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort
Lauderdale and William M. Kent of the Law Office of William
Mallory Kent, Jacksonville, for Appellant.
Jo Bondi, Attorney General, and Virginia Harris, Assistant
Attorney General, Tallahassee, for Appellee.
Michael J. Giles challenges the denial of his motion for
postconviction relief alleging several grounds of ineffective
assistance of trial counsel. The only claim at issue in this
appeal is that counsel was ineffective for advising Appellant
not to testify, despite the court's offer to allow him to
do so, after the court permitted the State to introduce as
rebuttal a recorded interview of Appellant that contradicted
his defense at trial. We affirm.
was convicted of aggravated battery with a deadly weapon in
connection with his involvement in an early-morning brawl
that erupted between rival college fraternities. The jury
found that, during the commission of the offense, Appellant
discharged a firearm and caused great bodily harm. At trial,
Appellant's sole defense was self-defense (i.e., he
admitted to discharging his firearm but did so in
self-defense). In a recorded interview with police after his
arrest, Appellant denied any involvement in the incident.
Until the State's rebuttal, the video of the interview
had not been admitted into evidence, and Appellant, with
advice of counsel, had not testified. After one of
Appellant's witnesses testified that Appellant had been
attacked without provocation, the court agreed to allow the
State to call a rebuttal witness and to introduce, through
her testimony, Appellant's recorded interview into
court announced that it would not permit surrebuttal, but it
would allow Appellant to take the stand before the recorded
interview was played for the jury if he had changed his mind
about not testifying. The court explained, however, that
"we have got to do this now, " because it would not
be fair to the State to allow Appellant to have "the
court asked defense counsel, "Do you want to talk to
[Appellant] and see if he's changed his mind about
testifying?" Counsel responded, "Yes, sir. . . .
May I step out with [Appellant]?" The court denied
counsel's request to speak with Appellant and stated
"[n]o. We need to do it quickly." Counsel then
asked if Appellant's father could come forward,
presumably to speak with Appellant. The court again denied
counsel's request, saying "[n]o. Let's get this
done." After a brief pause, counsel tried again, asking,
"Judge, would the Court give him permission to notify
the Court after the State presents their rebuttal?" Yet
again, the trial court denied the request, stating
"I'm not going to allow him to do it then. Like I
say, if you want to call him as a witness, you call him
now." Defense counsel represented to the court that
Appellant was going to maintain his right to remain silent.
The court asked Appellant if he agreed, and Appellant
replied, "Yes, sir."
maintain a claim for ineffective assistance of counsel, a
defendant must show that counsel's performance was
deficient and that the deficiency was prejudicial to the
defendant. Strickland v. Washington, 466 U.S. 668,
687 (1984). To meet the deficiency prong, the defendant must
show that counsel's representation "fell below an
objective standard of reasonableness" by committing
"errors so serious that counsel was not functioning as
the 'counsel' guaranteed the defendant by the Sixth
Amendment." Id. at 687-88; Johnson v.
State, 104 So.3d 1010, 1021 (Fla. 2012).
postconviction court did not err in denying Appellant's
claim that counsel was ineffective for advising Appellant not
to testify. Defense counsel's testimony during the
postconviction hearing, which is supported by the trial
transcript, was that he did not give any advice to Appellant
because there was no time to do so. Indeed, that is how
Appellant now frames the issue on appeal. On appeal,
Appellant argues that counsel's failure to demand that
the trial court give Appellant more time to consult with his
family and counsel constitutes ineffective assistance of
counsel. The record refutes Appellant's claim. Counsel
asked the trial court multiple times for additional time, far
from the dissent's characterization of counsel as a
"potted plant." And contrary to the dissent's
position that counsel had a duty to make a formal objection,
counsel is not ineffective for failing to make futile
objections. Hartley v. State, 206 So.3d 836, 838
(Fla. 1st DCA 2016) ("It is well settled that counsel is
not required to make futile objections or motions."). To
the extent that it may have been error for the trial court to
deny defense counsel's requests, putting unnecessary
pressure on Appellant to make an immediate decision as to
whether he would testify, the issue should have been raised
on direct appeal.
we conclude that Appellant failed to show that counsel's
representation fell below an objective standard of
reasonableness, we affirm the trial court's order denying
Appellant's motion for postconviction relief.
WETHERELL and RAY, JJ, CONCUR; MAKAR, J., ...