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. Waddell
A. Sichta, Joseph Hamrick, and Susanne K. Sichta,
Jacksonville, for Appellant.
Moody, Attorney General, and Benjamin L. Hoffman, Assistant
Attorney General, Tallahassee, for Appellee.
Appellant challenges an order denying his postconviction
motion brought pursuant to Florida Rule of Criminal Procedure
3.850. For the reasons discussed below, we affirm.
2012, the Appellant was convicted by a jury of two counts of
armed burglary with assault or battery and was sentenced to a
term of life in prison for both counts, to be served
concurrently. He was adjudicated a prison releasee reoffender
(PRR). He filed a timely notice of appeal, and this Court
reversed his conviction for count two because it constituted
a double jeopardy violation. See Burkhalter v.
State, 111 So.3d 993 (Fla. 1st DCA 2012). A revised
judgment was entered, finding the Appellant guilty of one
count of armed burglary with assault, sentencing him to life
in prison, and adjudicating him PRR.
2014, the Appellant filed a timely motion for postconviction
relief pursuant to Florida Rule of Criminal Procedure 3.850
raising seven claims. The lower court summarily dismissed
each claim, and this timely appeal followed.
Appellant's Initial Brief, he argues that the lower court
erred in denying grounds one, three, four, six, and seven of
his 3.850 motion. Therefore, appellate review of claims two
and five has been waived. See Watson v. State, 975
So.2d 572, 573 (Fla. 1st DCA 2008). We affirm the summary
denial of grounds one, four, and seven without discussion. We
affirm the lower court's summary denial of grounds three
and six for the reasons discussed below.
grounds three and six, the Appellant argues that counsel was
ineffective in failing to present the testimony of three
witnesses who would have undermined the testimony of two of
the State's witnesses, including the child victim of the
armed burglary. The lower court found that the proposed
testimony was not exculpatory and that there was sufficient
evidence of the Appellant's guilt in the other evidence
presented by the State. This Court issued a
Toler order asking the State to apply the
holding in Jacobs v. State, 880 So.2d 548, 555 (Fla.
2004), to this case. The State, in its response to the order,
conceded error in light of Jacobs.
Jacobs is distinguishable from this case. In
Jacobs, the Florida Supreme Court found that
"the mere existence of evidence of guilt is insufficient
to conclusively rebut a claim of ineffectiveness in failing
to present evidence of innocence in the form of known and
available alibi witnesses." Id. at 555. More
broadly, the Jacobs court found that a claim
involving "important exculpatory evidence" cannot
be resolved on the basis of conflicting evidence in the
record. Id. Here, the purported testimony would not
have provided any exculpatory evidence. See Kennon v.
State, 261 So.3d 755, 758 (Fla. 2019) (finding that
evidence was exculpatory where it provided an explanation for
why the defendant's blood was found at the scene of the
crime); Terrell v. State, 9 So.3d 1284, 1288 (Fla.
4th DCA 2009) (finding the eyewitness testimony that the
defendant did not intentionally slam his car into the police
car was exculpatory); Campbell v. State, 247 So.3d
102, 107 (Fla. 2d DCA 2018) (finding the testimony was
exculpatory where it would have shown the defendant was not
the only person in the car where the drugs were discovered).
Rather, the testimony of these witnesses would have merely
undermined the testimony of the victim and her mother. As
such, Jacobs is not applicable.
to call a witness at trial is the type of strategic decision
for which the lawyer's professional judgment is generally
not subject to postconviction second-guessing . . . ."
Ferguson v. State, 101 So.3d 895, 897 (Fla. 4th DCA
2012) (citing to Strickland v. Washington, 466 U.S.
668, 689-90 (1984)). "[I]f the defendant consents to
counsel's strategy, there is no merit to a claim of
ineffective assistance of counsel." Id.
(quoting Gamble v. State, 877 So.2d 706, 714 (Fla.
2004) (citing to Mendoza v. State, 81 So.3d 579, 582
(Fla. 3d DCA 2012) ("[N]ot only is Mendoza unable to
rebut the presumption that counsel's decision was
reasonable and strategic, Mendoza's express agreement to
such a decision is fatal to his claim of ineffective
assistance of counsel.")).
before the defense put on its case, the trial judge asked the
Appellant if he agreed that he and three other witnesses,
none of whom were the witnesses at issue, would be the only
witnesses called. The Appellant consented on the record to
counsel's strategy to call these three witnesses. That is
fatal to his claim. Because the Appellant consented to not
calling these four proposed witnesses, the lower court did
not err in summarily denying this ground though its reason
for doing so was flawed. See Robertson v. State, 829
So.2d 901, 906 (Fla. 2002) (discussing that an appellate
court may affirm a trial court order that reaches the right
result, but for the wrong reason); Farrey's Wholesale