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Austin v. State

Florida Court of Appeals, First District

July 23, 2019

Anthony L. Austin, Appellant,
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Duval County. Russell Healey, Judge.

          Anthony L. Austin, pro se, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, for Appellee.

          B.L. THOMAS, J.

         Appellant was charged with: sale of cannabis (Count One); possession of cocaine (Count Two); and possession of cannabis - less than 20 grams (Count Three). Appellant, unsatisfied with defense counsel's refusal to file a motion to suppress evidence, complained to the court and asked for a different attorney before trial. When the trial court told Appellant he did not get to choose which public defender would represent him, Appellant stated he wished to represent himself and the trial court conducted a lengthy Faretta[1] inquiry, ultimately allowing Appellant to represent himself.

         At the jury trial in 2014, a detective with the Jacksonville Sherriff's Office involved in a controlled drug buy with Appellant, testified that he could tell the substance was marijuana from the "hundreds of marijuana purchases" he made as a narcotics detective. On cross-examination, the detective admitted that no chemical tests were run on the collected substance and that he just "assumed" it was marijuana. On redirect, the detective clarified that he assumed it was marijuana based on his training and experience, and that he had been trained on the difference between marijuana and a synthetic called K2.

         Another detective testified that he searched Appellant and found five baggies of marijuana inside a clear plastic bag in Appellant's pocket. The detective testified he gave the narcotics to a police sergeant with the understanding that the drugs would be taken to the evidence room. He said he knew, based on his training and experience, that the green leafy substance in the baggies was marijuana, not K2. Another police witness testified that a bag containing seven baggies of marijuana was placed into evidence on the day of Appellant's arrest, along with cocaine and drug paraphernalia. He was unable on the stand, however, to distinguish which of the seven baggies came from the controlled buy, and which came from the search of Appellant's person.

         A detective testified that he interviewed Appellant after the arrest, and an audiotape of that interview was played for the jury. On the recording, Appellant stated he was there because he had a one-year-old child and was trying to make money for rent. He admitted to the detective that it was his cocaine and marijuana. The detective said that after the recording was shut off, Appellant told him he was trying to support his children.

         When the trial court denied defense counsel's motion for judgment of acquittal, Appellant started verbally berating the judge and eventually had to be removed from the courtroom. Appellant returned to the courtroom calmer, was sworn in, and stated that he did not want to testify.

         Appellant was found guilty as charged on all counts. At a Nelson[2] hearing, the trial court listened to Appellant explain his conflicts with defense counsel and found that defense counsel had not provided ineffective assistance. Appellant was sentenced to ten years in prison as a habitual felony offender on Count One, five years in prison on Count Two, and time served on Count Three, with all sentences imposed concurrently. This Court per curiam affirmed the final judgment. Austin v. State, 177 So.3d 252 (Fla. 1st DCA 2015).

         In 2017, Appellant filed a timely rule 3.850 postconviction motion, alleging eight grounds of ineffective assistance of counsel. The trial court summarily denied postconviction relief. Appellant appealed, arguing that the trial court erred in summarily denying Grounds One, Six, and Seven without affording an opportunity to amend, and that Grounds Three and Four warranted an evidentiary hearing. Because Appellant does not challenge the trial court's ruling on Grounds Two, Five, and Eight, we need not address the merits of those claims. See, e.g., Day v. State, 96 So.3d 1090 (Fla. 4th DCA 2012) (only addressing postconviction grounds challenged on appeal).


         To uphold a trial court's summary denial of a Rule 3.850 motion, the claim must either be facially insufficient or conclusively refuted by the record. Johnson v. State, 936 So.2d 1196, 1197-98 (Fla. 1st DCA 2006). To prove ineffective assistance of counsel, an appellant must show that: 1) the specific acts or omissions of counsel fell below a standard of reasonableness under prevailing professional norms; and 2) the appellant's case was prejudiced by these acts or omissions such that the outcome of the case would have been different. Strickland v. Washington, 466 U.S. 668, 692 (1984). Counsel cannot be ineffective for failing to make a meritless ...

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