FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Orange County, Marc L.
Lubet, Judge. Alicia L. Latimore, Judge
Rachael E. Reese, of O'Brien Hatfield, P.A., Tampa, for
Moody, Attorney General, Tallahassee, and Bonnie Jean
Parrish, Assistant Attorney General, Daytona Beach, for
a jury trial in 2009, Victor Davidson was found guilty of 205
counts of the originally charged 272 counts of possession of
material depicting a sexual performance of a child. This
court per curiam affirmed his conviction and
seventy-five-year prison sentence. Davidson v.
State, 75 So.3d 747 (Fla. 5th DCA 2011). We denied his
2014 petition for habeas corpus asserting ineffective
assistance of appellate counsel. Through counsel, he now
appeals the summary denial of his Florida Rule of Criminal
Procedure 3.850 postconviction motion in which he makes
numerous claims that he was prejudiced by allegedly
ineffective assistance of trial counsel. We reverse in part
the order summarily denying Appellant's rule 3.850 motion
and remand for an evidentiary hearing with regard to only the
claims based on: (1) counsel's failure to call
"Mitch" as a fact witness at trial; (2)
counsel's failure to call a cybercrimes expert to testify
at trial; and (3) cumulative error regarding the previously
listed two claims. We affirm the summary denial of all other
claims without discussion as they are meritless.
first asserts that his trial counsel was ineffective for
failing to call several fact witnesses. Appellant cannot
show that he was prejudiced by trial counsel's failure to
call two teenage sisters whose complaints led to the police
investigation of his computers, as their testimony would have
referred only to initial charges of lewd and lascivious
molestation that were dropped. Likewise, the testimony of
certain friends or relatives of the sisters and Sergeant
Gayhart could only have shed light on the credibility of the
sisters; however, the sisters' credibility had no bearing
on whether Appellant possessed illegal child pornography.
Thus, the postconviction court properly summarily denied
ground one as to those five witnesses.
the documents attached to the order of summary denial do not
conclusively refute the claim that Mitch, the boyfriend of
the fifteen-year-old sister, should have been called.
Appellant asserts that Mitch would have testified that
Mitch's actions led to unintentional downloading of the
child pornography onto Appellant's computer. Appellant
claims Mitch was available to testify at trial, but he did
not supply Mitch's last name in his original motion and
failed to provide the last name when given an opportunity to
amend for that purpose. However, given Mitch's supposed
relationship to one of the sisters, it should be possible to
locate him if he exists. Given that it is Appellant's
burden to prove ineffective assistance of counsel, the burden
also falls on him to sufficiently identify any uncalled
witness so that the court can properly consider what his
testimony might have been, his availability, and any reasons
that trial counsel chose not to call him. Accordingly, the
postconviction court shall conduct an evidentiary hearing
concerning the failure of counsel to call fact witnesses to
testify with regard to Mitch only.
Appellant claims that his counsel was ineffective for failing
to call a generically described cybercrimes computer expert
who Appellant alleges would have testified that the child
pornography was inadvertently downloaded onto his computer
due to malware, which if proven would tend to negate the
required "knowledge" element of Appellant's
possession of these illegal images. A claim of ineffective
assistance of counsel based on counsel's failure to call
an expert witness "need not, in every case, name a
specific expert and attest that the specific expert would
have been available to testify." State v.
Lucas, 183 So.3d 1027, 1037 (Fla. 2016). Thus, because
the documents attached to the order summarily denying this
claim do not conclusively refute Appellant's claim, an
evidentiary hearing must be conducted.
Appellant asserts a claim of cumulative error. Because we are
reversing and remanding for an evidentiary hearing as to the
two claims discussed above, we likewise reverse the summary
denial of the cumulative error claim for further
consideration. See Batista-Irizarry v. State, 266
So.3d 254, 257-58 (Fla. 5th DCA 2019).
all other grounds, sub-grounds, claims, and sub-claims, we
affirm the postconviction court's summary denial of
Appellant's rule 3.850 motion.
IN PART; REVERSED IN PART; AND REMANDED FOR FURTHER
EVANDER, CJ, and ...