Leo C. Bettey Jr., Appellant,
State of Florida, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Clay County. John H.
Bettey Jr., pro se, Appellant.
Jo Bondi, Attorney General, Tallahassee, for Appellee.
appeals the summary denial of his motion for postconviction
relief filed under Florida Rule of Criminal Procedure 3.850.
We affirm the order denying relief for the reasons discussed
a jury trial, Appellant was convicted of four counts of
capital sexual battery on a person under the age of 12 for
specific sexual acts on M.B. and J.B., and was sentenced to
concurrent terms of life in prison. This court affirmed his
convictions and sentences, without opinion. Bettey v.
State, 136 So.3d 1216 (Fla. 1st DCA 2014).
filed a postconviction motion arguing that he should have
been tried by twelve jurors instead of six. The trial court
denied the motion, and this court dismissed that
next filed a timely motion for postconviction relief alleging
four claims of ineffective assistance of
counsel. A claim of ineffective assistance of
counsel is governed by Strickland v. Washington, 466
U.S. 668, 690 (1984). To prove ineffective assistance, an
appellant must allege 1) the specific acts or omissions of
counsel which fell below a standard of reasonableness under
prevailing professional norms, see id. at 690; and
2) that the appellant's case was prejudiced by these acts
or omissions such that the outcome of the case would have
been different, see id. at 694. To prove the first
prong, "[t]he defendant must allege specific facts that,
when considering the totality of the circumstances, are not
conclusively rebutted by the record and that demonstrate a
deficiency on the part of counsel which is detrimental to the
defendant." Blackwood v. State, 946 So.2d 960,
968 (Fla. 2006) (citing LeCroy v. Dugger, 727 So.2d
236, 239 (Fla. 1998)). The prejudice prong requires that
Appellant demonstrate a reasonable probability that, but for
counsel's errors, the result of the proceeding would have
been different. See Strickland, 466 U.S. at 694.
"A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id.
Appellant must demonstrate a likelihood of a different result
which is substantial and not just conceivable. Harrington
v. Richter, 562 U.S. 86, 112 (2011).
ground one, Appellant alleged that counsel was ineffective
for failing to secure a ruling on a motion for a statement of
particulars that sought to narrow the time frame during which
the alleged offenses occurred. The information alleged that
the three offenses against M.B. occurred between April 1,
2010 and April 10, 2012, while the offense against J.B. was
alleged to have taken place between December 11, 2011 and
April 9, 2012. Appellant alleged that if counsel had secured
a ruling on the motion for a statement of particulars, and
had the time frame shortened in the information, the State
would not have been able to prove that the crimes occurred
during that time frame. Thus, Appellant argues, he would have
been entitled to be discharged, because "[w]hen a bill
of particulars narrows the time within which the crime
occurred, and the prosecution fails to show the defendant
committed the offense within that time frame, a conviction on
the charge must be reversed." Audano v. State,
674 So.2d 882 (Fla. 2d DCA 1996) (citing State v.
Jefferson, 419 So.2d 330, 331-32 (Fla. 1982)).
trial in March 2013, M.B. testified that she was eight years
old and that the abuse started when she was three. The State
also introduced a video of the victims' interviews with a
Child Protective Team member that occurred on April 12, 2012.
In the interview, M.B. stated that the abuse started when she
was five and continued until shortly before the interview.
J.B. testified at trial that she was six years old, and that
the abuse began when she was five years old; in her interview
with the Child Protective Team member, J.B. stated she was
five years old and she was not sure when the abuse started,
but she was probably four years old.
the testimony indicates that the victims could not provide
exact dates, but could only provide how old they were at the
time, therefore, the State would not have been able to
produce a statement of particulars. But contrary to
Appellant's arguments, this would not have led to an
acquittal or dismissal of the charges, as the State may
charge a date range, and need not specify exact dates if they
are not known. See Lightbourne v. State, 438 So.2d
380, 384 (Fla. 1983). The two-year date ranges alleged by the
State were proper. Id. ("[I]t is not necessary
that an indictment or information state the exact date of the
offense if such date is not known."). Because the State
could not narrow the time frame, and Appellant was not
hindered in his ability to raise a defense, his claim fails.
Cf. Dell'Orfano v. State, 616 So.2d 33 (Fla.
1993) (noting that 27-month time frame is not per se
objectionable in a sexual-battery case). Thus, Appellant
cannot show that he was prejudiced by counsel's failure
to secure a ruling on his motion for a statement of
ground two, Appellant alleged that counsel was ineffective
for failing to move for a judgment of acquittal, because the
State failed to prove that the crimes occurred during the
range of the dates alleged in the information. This claim is
meritless as well. The evidence was sufficient to show that
M.B.'s abuse occurred between April 1, 2010 (when she
would have been five years old) and April 12, 2012. Further,
the evidence indicated the abuse to J.B. occurred when she
was five years old, a period of time encompassed in the
December 11, 2011 to April 2012 date range.
even if the State failed to prove the crimes occurred during
the dates alleged, Appellant would not be entitled to relief.
In order to overcome a motion for judgment of acquittal, the
State must put forth evidence of each element of the
crime. See K.S. v. State, 840 So.2d 1116 (Fla. 1st
DCA 2003). The State was not required to prove that the crime
took place on the exact dates listed in the information, as
that is not an element of the offense. In Tingley v.
State, 549 So.2d 649, ...