pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Polk County; Wayne Durden, Judge.
Rachael E. Reese of OBrien Hatfield, P.A., Tampa, for
Moody, Attorney General, Tallahassee, and Chelsea N. Simms,
Assistant Attorney General, Tampa, for Appellee.
Romaine appeals from the postconviction courts final order
denying his motion for postconviction relief filed under
Florida Rule of Criminal Procedure 3.850. We write to address
the postconviction courts summary denial of Romaines sixth
claim of ineffective assistance of counsel. Because the
record attachments to the postconviction courts order do not
refute Romaines legally sufficient claim that his counsel
was ineffective for failing to retain a video enhancement
expert, we reverse the summary denial of that claim.
found Romaine guilty of one count of attempted armed robbery,
two counts of aggravated assault, and one count of armed
burglary of a structure with assault or battery. The charges
stemmed from an incident at CVS Pharmacy. Based on the
limited record before us, the evidence introduced at
Romaines jury trial reflected that a man with a gun entered
the pharmacy, pointed the gun at several of the employees,
and demanded that the employees give him several prescription
medications. When the employees did not comply with the
perpetrators demand, the perpetrator ran out of the store.
Three eyewitnesses to the robbery testified that they
identified Romaine as the perpetrator from a six-person photo
pack presented to them after the incident. A surveillance
video captured the incident and was published to the jury,
along with still photographs created from that video. But
Romaine could not be positively identified from that
surveillance video. And a fingerprint examiner testified that
Romaines fingerprints did not match the fingerprints lifted
from vitamin bottles that the perpetrator was alleged to have
held during the commission of the offenses. This court
affirmed Romaines judgment and sentences on direct appeal.
See Romaine v. State, 175 So.3d 297 (Fla.
2d DCA 2015) (table decision). Romaine subsequently filed a
rule 3.850 motion in which he raised nine claims of
ineffective assistance of counsel.
Pertinent to this appeal, Romaine alleged in claim six of his
postconviction motion that his trial counsel was ineffective
for failing to retain a video enhancement expert to improve
the clarity of the perpetrators face in the surveillance
video shown to the jury. Specifically, he asserted that
although the video revealed someone generally fitting his
description, the clarity of the face of the perpetrator,
unlike the clarity of the faces of others captured in the
video, was poor. He contended that had defense counsel
properly sought an expert to enhance the clarity of the
surveillance video, the jury would have been able to discern
that he was not the perpetrator from an enhanced video and
would have acquitted him.
order summarily denying that claim, the postconviction court
found, without elaboration, that defense counsel was not
deficient, and it further found that Romaine did not prove
that he was prejudiced by defense counsels failure to retain
an expert to enhance the clarity of the surveillance video
because three eyewitnesses positively identified Romaine as
the perpetrator. The record excerpts attached to the order
summarily denying that claim consist of the testimony of
three eyewitnesses who had identified Romaine in a six-person
photo pack presented to them after the robbery. Two of the
three eyewitnesses to the robbery were also able to identify
Romaine in court. Romaine timely appeals the postconviction
courts final order denying his motion.
review the postconviction courts summary denial of a claim
of ineffective assistance de novo. Martin v. State,
205 So.3d 811, 812 (Fla. 2d DCA 2016). "In conducting
that review, we accept the factual allegations of the
defendants motion as true unless they are conclusively
refuted by the record, the relevant portions of which must be
attached to the postconviction courts order."
Bolduc v. State, __ So. 3d __, __, 44 Fla.L.Weekly D
2241a, D2241a, 2019 WL 4179818 (Fla. 2d DCA Sept. 4, 2019)
(citing Fla. R. Crim. P. 3.850(f)(5)). We will affirm the
postconviction courts summary denial
of a claim of ineffective assistance of counsel if the claim
is facially insufficient or conclusively refuted by the
record. Id. (citing Watson v. State, 34