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Pinestraw v. State

Florida Court of Appeals, First District

February 28, 2018

Dwayne Pinestraw, Appellant,
v.
State of Florida, Appellee.

         On appeal from the Circuit Court for Escambia County. Thomas V. Dannheisser, Judge.

          Dwayne Pinestraw, pro se, Appellant.

          Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.

         ON MOTION FOR REHEARING EN BANC

          B.L. THOMAS, C.J.

         Appellant 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.

         Following 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.

         Dennis 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.

         Appellant 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.

         Appellant 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.

         Besides 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."

          In 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 scene.

         Appellant 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.

         Appellant's 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 ...


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