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Faulk v. State

Florida Court of Appeals, First District

November 20, 2019

Zethaniah A. Faulk, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Escambia County. W. Joel Boles, Judge.

          Zethaniah A. Faulk, pro se, Appellant.

          Ashley Moody, Attorney General, Tallahassee, for Appellee.

          B.L. Thomas, J.

         The Appellant, Zethaniah Faulk, appeals from an order denying his postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we affirm.

         These offenses arose when the same suspects robbed two different Circle K convenience stores on the same night. Subsequently, the Appellant was charged in Escambia County case 2013-CF-2718 with robbery with a firearm while wearing a mask (count I), aggravated battery with a deadly weapon (count II), aggravated assault by threat with a firearm (count III), and possession of a firearm by a convicted felon (count IV). In Escambia County case 2013-CF-2719, he was charged with robbery of a firearm while wearing a mask (count I), aggravated battery with a firearm (count II), aggravated assault by threat with a firearm (count III), and possession of a firearm by a convicted felon (count IV). These cases were consolidated for trial.

         A jury trial was conducted. The evidence established that the first robbery occurred at the Circle K located on W Street, where two victims were working. At about 2:22 a.m., one victim was cleaning the men's bathroom while the other victim was cleaning out front when the Appellant and his codefendant entered the store. They were both armed with firearms and with shirts concealing their faces. The Appellant pointed a gun at one victim and demanded money from the registers, threatening to kill her if she did not comply. She had difficulty opening the first register, so the Appellant jumped over the counter and held his gun to her head. Hearing her scream, the other victim exited the men's bathroom. The codefendant threatened him with a shotgun, telling him to go back into the bathroom or he would be shot. He locked himself in the bathroom. Meanwhile, the first victim continued to struggle with the registers, so the Appellant struck her repeatedly in the head with his gun. Once the two men had obtained cash and lottery tickets, they forced the victim to lay on the ground and departed. She pressed a panic button to summon the police. When the robbery was over, she was bleeding. Surveillance footage from the store was introduced into evidence. The victim identified the Appellant in a photo lineup and in court as the man who robbed the store.

         At about 3:40 a.m. that same night, the Appellant and his codefendant entered the Circle K located on Gulf Beach Highway, where the two victims were working. The Appellant entered the store and grabbed the victim by the ponytail. When she screamed, another victim came out of the cooler. The Appellant pointed a gun at the second victim and made him lay on the floor. Threatening the first victim with the gun, the Appellant dragged her by the hair to the registers and forced her to open them. After she complied, he made her get down on her knees to open the safe. She gave him $600. He asked for more and she told him she could not take any more money out of the safe until the light turned green again. He responded by striking her repeatedly in the head with the butt of the gun. The two men left, and the clerks called 911. Afterwards, she was bleeding profusely from the head. This victim identified the Appellant in a photo lineup and in court. Surveillance footage was introduced into evidence.

         The Appellant's videotaped-police interview was played for the jury. During that interview, he admitted to participating in both robberies and receiving a portion of the proceeds. He told the police that he did most of the work during the robberies because he is "the most dangerous one of them all." He indicated that two guns were involved in the offenses. He also said that he struck the clerk at the W Street Circle K because she was not doing what he wanted her to do. He also described "snatching up" the clerk in the Gulf Beach Highway Circle K.

         At the conclusion of the trial, the Appellant was convicted as charged of counts I through III in each case. Count IV in each case had been severed, and these counts were subsequently dropped. On July 14, 2014, the Appellant was sentenced in case 2013-CF-2718 to life in prison with a 10-year mandatory minimum sentence on count I, 15 years in prison with a 10-year mandatory minimum sentence on count II, and 5 years in prison with a 3-year mandatory minimum sentence on count III. He was designated as a prison releasee reoffender (PRR) and a habitual felony offender (HFO) on all three counts. All sentences were imposed consecutively. In case 2013-CF-2719, he was sentenced to life in prison with a 10-year mandatory minimum on count I, 15 years in prison with a 10-year mandatory minimum on count II, and 5 years in prison with a 3-year mandatory minimum on count III. These sentences were also imposed consecutively, and he was designated as a PRR and an HFO on each count. His convictions and sentences were affirmed on appeal. See Faulk v. State, 173 So.3d 969 (Fla. 1st DCA 2015).

         Beginning in 2016, the Appellant filed a series of rule 3.850 motions raising various claims. Twice, the trial court struck the Appellant's motions with leave to amend. The operative motion- the Appellant's second amended rule 3.850 motion-raised six claims of ineffective assistance of counsel, which the trial court summarily denied.[*]

         In the Appellant's first claim, he argued that his attorney was ineffective for failing to seek sequestration of the witnesses pursuant to section 90.616, Florida Statutes (2013). He alleged that after one victim testified, she was overheard discussing her testimony with the victim of the other robbery. He asserted that trial counsel failed to object, inquire into the matter, and move for a mistrial. He claimed that counsel's omission allowed the witnesses to tailor their testimony to avoid impeachment.

         To prove ineffective assistance a defendant must allege (1) the specific acts or omissions of counsel which fell below a standard of reasonableness under prevailing professional norms and (2) that the defendant's case was prejudiced by these acts or omissions such that the outcome of the case would have been different. Strickland v. Washington, 466 U.S. 668, 690-92 (1984). The prejudice prong requires that the defendant demonstrate a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694. If the defendant ...


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