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. Marianne L.
Michael Wolfe Morris, pro se, for Appellant.
Moody, Attorney General, and Trisha Meggs Pate, Assistant
Attorney General, Tallahassee, for Appellee.
Morris appeals an order summarily denying his motion for
postconviction relief brought under Florida Rule of Criminal
Procedure 3.850. We affirm.
was convicted in 2014 of first-degree murder for shooting his
wife seven times during an argument at their home. He was
sentenced to life in prison and his judgment and sentence
were affirmed on direct appeal. Morris v. State, 166
So.3d 773 (Fla. 1st DCA 2015). Morris then filed a pro se
motion for postconviction relief that he amended once,
raising multiple claims of ineffective assistance of counsel.
After retaining counsel, he filed a second amended motion for
postconviction relief. The trial court summarily denied his
motion, and this appeal follows.
review the summary denial of a motion for postconviction
relief de novo, and we will affirm the trial court's
order only where the claims are facially invalid or
conclusively refuted by the record. Hill v. State,
258 So.3d 577, 579 (Fla. 1st DCA 2018). To prevail on a claim
of ineffective assistance of counsel, the movant must satisfy
two requirements. First, he must specifically identify the
acts or omissions of counsel that fell below a standard of
reasonably competent performance as measured by prevailing
professional norms. Strickland v. Washington, 466
U.S. 668, 690 (1984). Second, he must show that there is a
reasonable probability that the outcome of the proceeding
would have been different but for counsel's deficient
performance. Id. at 694. Because both prongs must be
satisfied, if counsel's performance was not deficient
under the first prong, then there is no need for a reviewing
court to address prejudice under the second prong. Long
v. State, 118 So.3d 798, 805 (Fla. 2013).
first claims that his defense counsel was ineffective for
failing to consult with or present an expert witness to show
that Morris suffered from battered spouse syndrome (BSS) and,
as a result, lacked the requisite mental state to commit
murder. "BSS is not itself a legal defense, but evidence
that the defendant suffers from BSS is admissible in Florida
to support a claim of self-defense when the defendant is
charged with a crime against [his] abuser." Wagner
v. State, 240 So.3d 795, 797 (Fla. 1st DCA 2017).
However, a defendant cannot present evidence of an abnormal
mental condition not constituting legal insanity to argue
that he did not have the specific intent or state of mind
necessary to commit an offense. Chestnut v. State,
538 So.2d 820, 825 (Fla. 1989).
trial, Morris did not rely on a claim of self-defense.
Moreover, the record shows that the shooting occurred when he
grabbed the victim and pulled her back inside the house as
she was trying to escape because he did not want her to send
him to jail for something he did not do. Nor does he allege
that his mental condition would support an insanity defense.
Therefore, he could not rely on BSS as a vehicle to introduce
evidence of his mental state or diminished capacity in an
attempt to negate the requisite intent for murder. See
Hodges v. State, 885 So.2d 338, 352 n.8 (Fla. 2009)
(reaffirming that counsel is not ineffective for failing to
present evidence that the defendant's mental capacity
prevented him from acting with premeditation). Morris has
failed to demonstrate that counsel's performance was
deficient, and the trial court properly denied this claim.
Morris claims that his defense counsel was ineffective for
failing to call lay witnesses that would corroborate his
claims of suffering from BSS. Because counsel was not
ineffective for failing to present an expert witness on the
issue of BSS, she was not ineffective for failing to call lay
witnesses to corroborate the expert's testimony. The
trial court properly denied this claim.
also argues that his defense counsel was ineffective for
failing to present BSS evidence at his sentencing hearing.
But because he failed to raise this claim in the trial court,
it cannot be considered for the first time on appeal. See
Mendoza v. State, 87 So.3d 644, 661 (Fla. 2011).
next claim, Morris argues that his defense counsel was
ineffective for failing to request a
Richardson[*] hearing and move for a mistrial when
the State failed to turn over the victim's cell phone
allegedly containing evidence of her behavior that supported
his BSS defense. However, his postconviction counsel did not
include this claim in his second amended motion for
postconviction relief and the trial court did not rule on it.
Therefore, this claim was abandoned. Watson v.
State, 247 So.3d 685, 687 (Fla. 1st DCA 2018).
additionally claims that his defense counsel was ineffective
for failing to object to an alleged misstatement of the law
by the prosecutor during closing arguments. Specifically, he
focuses on a single statement at the very end of closing
arguments where the prosecutor said that "premeditation
can be formed in an instant." However, premeditation can
be formed in a moment before the killing and need only exist
for enough time to allow the defendant to be aware of what he
is about to do and the likely result of his actions.
Oliver v. State, 214 So.3d 606, 618-19 (Fla. 2017).
It can also be formed after the attack has begun.
Demurjian v. State, 557 So.2d 642, 644 (Fla. 4th DCA
1990). Even if it had been a misstatement of the law, the
record shows that when it is considered in the context of the
prosecutor's closing argument as a whole, ...