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. Bruce
Thomas, pro se, Appellant.
Moody, Attorney General, and Holly N. Simcox, Assistant
Attorney General, Tallahassee, for Appellee.
Calvin Thomas was tried and convicted by a jury of armed
robbery, aggravated fleeing or attempting to elude a law
enforcement officer, and possession of cocaine. He was
sentenced to concurrent terms of life in prison for armed
robbery, twenty years in prison for fleeing and eluding, and
five years in prison for possession of cocaine. After
Appellant unsuccessfully appealed his judgment and sentence,
he moved for postconviction relief, making eleven ineffective
assistance of counsel claims. The trial court held an
evidentiary hearing on one of the claims but summarily denied
the remaining claims. The only issue on appeal involves the
summary denial of claim eight in which Appellant argues that
counsel was ineffective for failing to call two alibi
witnesses. We affirm.
Strickland v. Washington, 466 U.S. 668 (1984), the
United States Supreme Court outlined the two-pronged test to
determine ineffective assistance of trial counsel. Spera
v. State, 971 So.2d 754, 757 (Fla. 2007). To be entitled
to relief, a defendant must establish both prongs. See
id. at 758. "The deficient performance prong
requires . . . acts or omissions of counsel that are 'so
serious that counsel was not functioning as the counsel
guaranteed by the Sixth Amendment.' The prejudice prong
requires . . . 'a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.'" Id.
at 757-58 (quoting Strickland, 466 U.S. at 649).
"To uphold the trial court's summary denial of
claims raised in a 3.850 motion, the claims must be either
facially invalid or conclusively refuted by the record."
Foster v. State, 810 So.2d 910, 914 (Fla. 2002)
(quoting Peede v. State, 748 So.2d 253, 257 (Fla.
argues that defense counsel was ineffective for not calling
two alibi witnesses at trial. To state a facially sufficient
claim of ineffective assistance of counsel based on the
failure to call a witness, "the movant must allege the
identity of the potential witness, the substance of the
witness's testimony, an explanation of how the omission
of the testimony prejudiced the outcome of the case, and a
representation that the witness was available for
trial." Leftwich v. State, 954 So.2d 714, 714
(Fla. 1st DCA 2007). Appellant's motion alleged that the
two witnesses-Mr. Wingard and Ms. Braswell-were available and
would have testified that he was in New Jersey on the date of
the armed robbery.
trial court gave two reasons for its summary denial: (1) that
the alibi testimony would have been cumulative of testimony
elicited from another witness, and (2) that the record
conclusively refuted Appellant's contention that he
wished to call these particular alibi witnesses at trial.
Though the parties and the trial court treated this claim as
having been summarily denied, aspects of this claim were
addressed in the hearing below. The hearing transcript
addresses, for instance, that witness Wingard had a lengthy
criminal record. Appellant's postconviction counsel
reasoned that the choice not to have Wingard testify was made
because of his credibility. The record also demonstrates that
Wingard's alibi testimony would have been cumulative.
See Darling v. State, 966 So.2d 366, 377 (Fla. 2007)
(recognizing that "trial counsel is not ineffective for
failing to present cumulative evidence"). Additional
testimony is not cumulative if it differs in quality and
substance and may enhance a defendant's case with the
jury. See Valle v. State, 502 So.2d 1225, 1226 (Fla.
1987) (finding evidence not to be cumulative when it
"differed in quality and substance" from other
witnesses); Riggins v. State, 168 So.3d 322, 325
(Fla. 2d DCA 2015) (evaluating the effect of potential
testimony on the jury). Here, not only did Wingard's
deposition indicate that his testimony would have been the
same as the alibi testimony provided by another trial
witness, but Wingard was a convicted felon, just like that
trial witness. Contrary to Appellant's contention,
witness Wingard's character was not "beyond
reproach." And Wingard would have been subject to the
same damaging cross-examination as that experienced by the
trial witness. Under these circumstances, we find no error in
the trial court's decision to deny Appellant's
ineffective assistance claim on the basis that witness
Wingard's testimony would have been cumulative.
witness Braswell, it is not clear from the record whether her
alibi testimony would have been cumulative. However, the
record refutes Appellant's contention that he desired to
call Braswell as a witness at trial. The order below quoted
portions of a colloquy at trial between the court, defense
counsel, and the Appellant, in which, after the defense had
rested its case, Appellant indicated that he wanted to call
more witnesses. After the trial court indicated that it would
allow him to do so, the additional witnesses he identified to
his counsel and the court did not include Braswell. In
addition, after the trial court addressed Appellant's
uncalled-witness issue, the court asked for and received
Appellant's assurance that he was satisfied with his
counsel's performance. Based on this record, we find no
error in the trial court's conclusion that Appellant
failed to communicate that he wished to call Braswell as an
additional alibi witness. See Terrell v. State, 9
So.3d 1284, 1289 (Fla. 4th DCA 2009) (rejecting a
defendant's claim based on his attorney's failure to
call a witness because the colloquy transcript showed that
the defendant did not want to call any other witnesses);
see also Burkhalter v. State, 44 Fla.L.Weekly D2258,
2019 WL 4249637 (Fla. 1st DCA Sept. 9, 2019) (concluding that
a defendant's consent on the record to a decision not to
call witnesses thwarted his ineffective assistance of counsel
claim). We thus affirm the order denying postconviction
Thomas and ...