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Raysor v. State

Florida Court of Appeals, Second District

July 19, 2019

ROGER RAYSOR a/k/a ROGER ALEXANDER RAYSOR, JR., Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Charlotte County; George C. Richards, Judge.

          SILBERMAN, JUDGE.

         Roger Raysor appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 that alleges ineffective assistance of counsel. We affirm the summary denial of claims 1, 2, 3(a), and 3(c) without comment. We reverse and remand for further proceedings on the claims the court considered together as 3(b) and 3(d). We also remand for correction of a scrivener's error in the judgment.

         Raysor is challenging his conviction for possession of a firearm by a convicted felon. The jury found him guilty of that offense as a violation of section 790.23(1)(a), Florida Statutes (2014), and specifically found that Raysor was in actual possession of a firearm. Raysor was sentenced to ten years in prison with a three-year minimum mandatory. See § 775.087(2)(a), Fla. Stat. (2014).

         At trial, witness Kyle Comstock testified that he saw Raysor fire a gun. Comstock acknowledged that he had told officers that it could have been a pistol. But he also testified, "I have no clue what type of gun it was. I have no clue if it's a handgun, rifle, could be anything." Fired nine millimeter casings were found hidden in a nearby residence. The gun was never recovered. Detective Buchinsky testified that the gun manufacturer Taurus makes a nine millimeter firearm.

         In a recorded jail call, Raysor spoke to his then girlfriend, Ms. Johnson, and told her to get rid of what was under his stereo. The transcript reflects that Raysor also said, "(Inaudible) what I said, you going to find your little toy."

         Raysor alleged in claim 3(b) that counsel failed to object to the State's mischaracterization of evidence and in claim 3(d) that counsel failed to object to the State's improper closing arguments that mischaracterized the evidence. The postconviction court considered claims 3(b) and 3(d) together.

         Raysor alleged that counsel did not object to the following improper comments the prosecutor made: (1) stating that the witness "agreed, yes, it was a pistol that's what I told deputies," but "Comstock did not actually say that"; (2) "mischaracterizing the words 'Toy' and 'Taurus' during the recorded conversation with Shaia Johnson"; and (3) improperly implying that Raysor "fabricated his version of the shooting incident during his taped interview with Detective Buchinsky" and also that it "was an impermissible comment on [Raysor's] right to remain silent." Raysor referred to the failure to object as ineffective assistance of counsel and "egregiously prejudicial." He also inartfully alleged in essence that if his counsel had objected, it would have changed the weight and sufficiency of the evidence in front of the jury and that no jury could return a verdict in favor of the State.

         In its response, the State acknowledged that defense counsel did not object to the three statements in closing argument that form the basis of claims 3(b) and 3(d). The State argued that it could properly point out inferences that may reasonably be drawn from the evidence, but the State did not address the subject matter of the three statements.

         In its order summarily denying relief, the postconviction court stated the following as to claims 3(b) and (3)(d):

In his second and fourth subclaims, Defendant alleged that counsel should have objected to the State's mischaracterization of evidence during the closing argument. The standard jury instructions inform the jurors that what the attorneys say is not evidence but intended to aid the jury in understanding. Attorneys may make reasonable inferences from the evidence presented at trial.

(R. 80). The postconviction court did not refer to the substance of the comments or attach the portions of the transcript where the comments were made. And the court did not attach the portion of the transcript where the jury was instructed that what the lawyers say is not evidence. See Fla. Std. Jury Instr. (Crim.) 2.7 (Closing Argument).

         In addition, our record does not contain an audio of the recorded jail call in which the State argued that Raysor allegedly said "Taurus," a make of gun, rather than "toy." The postconviction court mentioned earlier in its order that it had only a transcript and not the recording of the jail call. Our record also does not contain ...


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