final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrew L. Siegel, Judge; L.T. Case No.
Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.
David Barton was found guilty of attempted murder in the
second degree, and attempted manslaughter by act with a
firearm. On appeal, Appellant argues that the trial court
improperly admitted a photograph, and that his defense
counsel was ineffective. We affirm the trial court on all
issues. We find no error with the admission of the
photograph, as it was relevant and sufficiently connected to
the crimes. See Holloway v. State, 114 So.3d 296,
297 (Fla. 4th DCA 2013). Additionally, as discussed below,
there is insufficient evidence on the face of the record to
show that Appellant's trial counsel was ineffective for
failing to file a motion to suppress evidence retrieved from
a warrantless search of Appellant's cell phone.
State presented witness testimony that two weeks prior to the
shooting at issue, Appellant and another student got into a
fight, resulting in a one week suspension. Later that week in
the early morning, a gunman fired four or five times towards
a school bus stop near an elementary school, where there were
fifteen to twenty-five students at the time. The student that
fought with Appellant earlier that week was one of those
students. Another student was seriously injured by a
projectile lodged in her neck as a result of the shooting.
investigating, police found projectiles consistent with a .22
caliber gun; however, police were unable to recover the
weapon. Police also found a cell phone and its back cover
near the scene of the crime. Specifically, the cell phone was
found lying on the grass inside an apartment complex, just a
few feet away from a fence separating the apartments from the
street. In turn, that fence was located about fifteen feet
away from the bus stop. A student testified that at the time
of the event, he saw muzzle flash along the fence line.
Moreover, police discovered three bullet holes in the fence
rails, indicating that the shots came from the apartment
discovering the cell phone, police immediately took it to
their Covert Electronic Surveillance Unit to extract data.
While doing so, police were questioning witnesses to find the
identity of the shooter. Within a few hours of finding the
phone, police obtained the phone's number, as well as
some contacts and text messages stored on the phone. Police
initially matched the phone to Appellant since some of the
text conversations mentioned his name. Police could also
match the phone to Appellant because a student had provided
them with Appellant's phone number during an interview.
Several weeks later, police obtained a search warrant to get
more detailed information from the phone, such as call logs,
GPS locations, and subscriber information, definitively
showing that the phone belonged to Appellant.
trial, the State admitted the phone data without objection.
The jury rendered a verdict finding Appellant guilty of
attempted murder in the second degree, and attempted
manslaughter by act with a firearm. This appeal followed.
a claim of ineffective assistance of counsel is not
cognizable on direct appeal since the issue is so
fact-specific. Michel v. State, 989 So.2d 679, 681
(Fla. 4th DCA 2008) (citing Gore v. State, 784 So.2d
418, 437-38 (Fla. 2001)). However, as this Court noted,
"such a claim can be raised where the face of the record
demonstrates ineffective assistance of counsel."
Id. (citing Bruno v. State, 807 So.2d 55,
63 n.14 (Fla. 2001)).
prove ineffective assistance of counsel, the defendant must
show that counsel's actions fell below an objective
standard of reasonableness, and that the defendant would have
received a different result in the proceeding, but for such
representation. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Phillips v. State, 225 So.3d
269, 271 (Fla. 4th DCA ...