appeal from the Circuit Court for Escambia County. Thomas V.
Pinestraw, pro se, Appellant.
Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant
Attorney General, Tallahassee, for Appellee.
MOTION FOR REHEARING EN BANC
has filed a Motion for Rehearing En Banc of our per curiam
affirmance, in which we upheld the denial of relief under
Florida Rule of Civil Procedure 3.850. We deny
Appellant's motion, but withdraw our opinion of August
24, 2017, and substitute this opinion in its place.
a jury trial, Appellant was convicted and sentenced to life
imprisonment for first-degree murder, and two 15-year terms
of imprisonment for attempted murder and shooting into an
occupied building. The record reflects that one of the
victims, Vincent Dennis, contacted Appellant under the
pretense of purchasing a pound of marijuana from him on
behalf of Dennis's friend, Vaurus Barnett. Dennis knew
that Barnett was going to rob Appellant of the marijuana
rather than pay for it. The parties met at a gas station, and
Appellant had with him Shaquill Best. While still seated in
the car, Appellant handed over the marijuana; Barnett then
punched Appellant in the face and took the gun off of
Appellant's lap. Appellant stated they would "be
back, " and drove off.
and Barnett took the marijuana to a friend's apartment. A
few hours later, while the two were still inside the
apartment, the tenant's brother opened the front door and
told Dennis there was a person outside wanting to buy
marijuana. When Dennis got to the door, Besst stated,
"That's him, " and Appellant pulled a gun and
started firing. Dennis shut the door, but Appellant's
gunshots pierced the door and window of the apartment.
shot Dennis three times. He also shot a 22-month-old child
located inside the apartment. The child received two gunshots
to his chest, and died from these injuries.
fled the scene of the shooting, and later abandoned his
residence, but was apprehended in Texas. Besst, having
negotiated a deal to plead to second-degree murder, testified
against Appellant. Besst described being present at the
robbery and afterward going with Appellant to the apartment
where Dennis and Barnett had retreated. He testified that
only Appellant had a gun, and Appellant pulled it out of his
shorts and shot at Dennis through the door and the window of
the apartment. He testified that after the shooting, he and
Appellant returned to Appellant's apartment, at which
time Appellant called his mother to pick him up, and
Appellant left with his mother.
the co-defendant's testimony, the prosecution read to the
jury the sworn deposition of Appellant's cousin, who was
undergoing kidney dialysis for a terminal condition with a
projected life expectancy of two months. The cousin stated
that Appellant had come to his home in Louisiana. He stated
Appellant had confessed to him that he shot at someone who
had robbed him and he thought he might have
"killed" this person, and he also admitted he might
have "killed a baby."
addition to this evidence, the State presented the testimony
of Barnett, Dennis, and several eyewitnesses present at the
shooting and during other events which inculpated Appellant
in the crimes. These persons either personally knew Appellant
or recognized him as the shooter and identified him when
shown a photo spread. The State also presented testimony from
a number of investigators and crime-scene analysts from the
police department and the Florida Department of Law
Enforcement who described the evidence located at the crime
did not take the stand. The defense rested without presenting
any testimony or evidence. The jury found Appellant guilty as
charged on all three counts.
direct appeal in this Court proceeded pursuant to Anders
v. California, 386 U.S. 738 (1967). In the initial
brief, counsel cited the statement of judicial acts to be
reviewed, and stated she could not in good faith argue trial
court error ...