FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Charlotte County; George C. Richards, Judge.
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.
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).
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
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
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)
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.
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.
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
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