Anthony L. Austin, 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 Duval County. Russell
Anthony L. Austin, pro se, for Appellant.
Moody, Attorney General, Tallahassee, for Appellee.
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 inquiry,
ultimately allowing Appellant to represent himself.
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.
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
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
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.
was found guilty as charged on all counts. At a
Nelson 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).
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).
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 ...