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 Escambia County. Thomas V.
Michael Ufferman, Tallahassee, for Appellant.
Moody, Attorney General, Jennifer J. Moore, Assistant
Attorney General, Tallahassee, for Appellee.
review the trial court order denying Appellant's motion
for post-conviction relief under Florida Rule of Criminal
was charged by amended information with (Count 1) sexual
battery while in a position of familial authority, for
penetrating the vagina of the victim with his penis when the
victim was between age fifteen and seventeen, (Count 2)
sexual battery while in a position of familial authority, for
penetrating the mouth of the victim with his penis when the
victim was between age thirteen and seventeen, and (Count 3)
lewd and lascivious molestation on a victim under twelve
years old, for forcing or enticing the victim to touch him
when she was between the ages of six and eleven.
attachments to the order on Appellant's motion reflect
the following facts. At trial, the victim testified that
Appellant, her stepfather, made her touch his penis with her
hands "two or three times a week," beginning when
she was six or seven and continuing until she was eighteen.
The victim testified that the abuse escalated: she stated she
lost her virginity to Appellant when she was fifteen, and
that if she was on her period she would perform oral sex. The
victim testified that she eventually found out that she was
pregnant and gave birth to a baby that she then put up for
adoption. She identified Appellant as the person who
impregnated her. DNA evidence presented at trial established
by a 99.99 percent probability that Appellant was the
biological father of the victim's child.
of an interview between Appellant and law enforcement was
played at trial. During the interview, Appellant stated that,
when the victim was eighteen, she got drunk on New Year's
Eve and asked him to rub her vagina; Appellant stated that he
pushed her away and told her to go to bed. At trial, however,
Appellant admitted to having sexual intercourse with the
victim, his stepdaughter, when she was eighteen, but never
daughter, the victim's half-sister, who was fourteen at
the time of trial, testified that she lived with her father,
but "he didn't really pay attention to [her],"
stating Appellant largely ignored her and her younger
brother. Appellant's daughter testified that Appellant
focused most of his attention on the victim, although she
testified that she never saw anything that she thought was
inappropriate. Appellant's daughter testified that
Appellant would occasionally send her and her brother outside
to play with the dog or clean the pool, but that the victim
would not be sent outside with them. Appellant's daughter
testified that she would sometimes try to go back inside to
get water, but he door would be locked. Appellant's
daughter testified that, when she and her brother would
eventually be let back inside, she would see the victim
"washing her hands and crying."
twelve-year-old son also testified that when his mother was
at work, and he and the victim were home with Appellant along
with Appellant's daughter, Appellant would send his own
children outside and that his son would find the door locked
when he attempted to reenter.
jury found Appellant guilty on all three counts, and the
court sentenced him to concurrent thirty-year sentences for
Counts 1 and 2, and to life in prison for Count 3.
filed an amended motion for postconviction relief under
Florida Rule of Criminal Procedure 3.850 raising seven
grounds for relief. Pertinent here, Appellant claimed newly
discovered evidence, and attached an affidavit from
Appellant's daughter in which she swore that she now did
not believe that Appellant had molested her sister. She
stated that she felt she had been "coached or brain
washed" to take her mother and sister's side over
her father's, and that her mother "put a lot of
things in [her] head." She stated that she had testified
in court that her father didn't pay attention to her, and
stated she now knows that his attention was focused on the
victim "because they were in a relationship."
Appellant's daughter stated that she felt she had been
obligated to protect her mother and sister, and stated that
"I think what my father did was very wrong, but in my
heart I don't feel like he should be doing life for
something he did not do something their [sic] is no proof
motion, Appellant also claimed that his trial counsel was
ineffective for failing to call Appellant's parents and
Ami Morris as witnesses at trial, failing to go over the
victim's text messages with Appellant, and failing to
introduce a letter Appellant wrote to his father in which he
admitted having a sexual relationship with his
eighteen-year-old stepdaughter. Appellant additionally raised
two sentencing issues.
postconviction court summarily denied the
motion[*], finding that Appellant's
daughter's recanted testimony would not probably produce
an acquittal on retrial and that Appellant could not show
prejudice on ...