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Romaine v. State

Florida Court of Appeals, Second District

October 30, 2019

Eric Todd ROMAINE, Doc #H11739, Appellant,
v.
STATE of Florida, Appellee.

Page 426

          Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; Wayne Durden, Judge.

          Rachael E. Reese of O’Brien Hatfield, P.A., Tampa, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Chelsea N. Simms, Assistant Attorney General, Tampa, for Appellee.

         OPINION

         BADALAMENTI, Judge.

         Eric T. Romaine appeals from the postconviction court’s final order denying his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We write to address the postconviction court’s summary denial of Romaine’s sixth claim of ineffective assistance of counsel. Because the record attachments to the postconviction court’s order do not conclusively

Page 427

refute Romaine’s legally sufficient claim that his counsel was ineffective for failing to retain a video enhancement expert, we reverse the summary denial of that claim.

         A jury 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 Romaine’s 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 perpetrator’s 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 Romaine’s 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 Romaine’s 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 perpetrator’s 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.

          In its 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 counsel’s 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 court’s final order denying his motion.

          We review the postconviction court’s 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 defendant’s motion as true unless they are conclusively refuted by the record, the relevant portions of which must be attached to the postconviction court’s 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 court’s summary denial

Page 428

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 ...


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