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. Steven B.
Charles Fletcher, Jacksonville, for Appellant.
Moody, Attorney General, and Daniel Krumbholz, Assistant
Attorney General, Tallahassee, for Appellee.
William Roderick, seeks review of an order denying a
postconviction motion brought pursuant to Florida Rule of
Criminal Procedure 3.850. For the reasons discussed below, we
was charged with two counts of sexual battery upon a child by
a person in familial or custodial authority, one count of
providing alcoholic beverages to a person under age 21, and
one count of resisting arrest without violence. Appellant and
the victim are father and daughter. On the night of the
incident, Appellant, his mother, and the victim checked into
a hotel and reserved two rooms. Appellant and the victim
remained in one room while his mother stayed in another. The
victim testified that while in the hotel room, Appellant,
offered her sips of alcohol and tickled her, sitting on top
of her. The victim asked him to stop but Appellant removed
the victim's pants and underwear and took off his
underwear. Appellant performed oral sex and sexually
penetrated the victim. She eventually managed to run out of
the room and into the hotel office for assistance. The hotel
clerk testified at trial that he saw a young girl who
appeared to be terrified, running and yelling for help. He
assisted her and called 911. While in police custody,
Appellant could not recall if he had raped his daughter as he
had seven drinks that night and did not know how much alcohol
the victim drank.
trial, the Child Protection Team (CPT) officer who examined
the victim opined that there was sexual assault or abuse
based on the patient history but the physical findings
neither confirmed nor negated allegations of sexual abuse.
She further testified that an examination could not
conclusively determine whether a sexual assault took place.
There was no foreign DNA recovered from the sexual assault
kit. The defense theory was that the lack of DNA evidence
showed that the victim fabricated the sexual battery so she
could move out-of-state with her mother, the non-custodial
the Appellant was convicted of his charged offenses. He was
sentenced to a total of 25 years in prison to be followed by
five years of sexual offender probation. His convictions and
sentences were affirmed on appeal. Roderick v.
State, 120 So.3d 802 (Fla. 1st DCA 2014). Appellant
filed the instant amended rule 3.850 motion, raising seven
claims of ineffective assistance of counsel, which the lower
court summarily denied.
appeal, Appellant only challenges the denial of his first,
fifth, sixth, and seventh claims. While the Appellant's
brief refers to and contains an amalgamation of the factual
allegations made in claims two, three, and four, he does not
argue the claims therein. Thus, only the first, fifth, sixth,
and seventh claims of the motion are subject to review.
See Watson v. State, 975 So.2d 572, 573 (Fla. 1st
DCA 2008). A claim of ineffective assistance of counsel is
governed by Strickland v. Washington, 466 U.S. 668,
690 (1984). 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. See Id. at
690-92. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Id. The defendant must demonstrate a likelihood of a
different result which is substantial and not just
conceivable. Harrington v. Richter, 562 U.S. 86, 112
(2011). The prejudice in counsel's deficient performance
is assessed based on its effect on the results at trial, not
its effect on appeal. Strobridge v. State, 1 So.2d
1240, 1241 (Fla. 4th DCA 2009) (citing Carratelli v.
State, 961 So.2d 312, 323 (Fla. 2007)).
Appellant's first claim, he argued that counsel failed to
object to the state's expert witness vouching for the
credibility of the victim. The testimony at issue involved
the expert opinion of the CPT officer who examined the
victim. She testified that in her medical opinion there was
sexual assault or abuse according to patient history and
physical findings that were consistent with the history.
Appellant contends that the expert witness improperly vouched
for the credibility of the victim.
of ineffective assistance of counsel arguing counsel's
failure to object requires that the basis of the objection be
credible. Hitchcock v. State, 991 So.2d 337. 361
(Fla. 2008). It is improper for an expert witness to
"give the jury the clear impression that the expert
believed the child victim was telling the truth."
Geissler v. State, 90 So.3d 941, 947 (Fla. 2d DCA
2012); see also Feller v. State, 637 So.2d 911, 915
(Fla. 1994) ("An expert may not directly vouch for the
truthfulness or credibility of a witness"). Although the
witness did not directly speak to credibility, the expert
witness improperly conveyed her conviction that the victim
was telling the truth solely based on the patient-reported
intake history. Thus, counsel provided deficient performance
in failing to object to the CPT officer's testimony.
counsel provided deficient performance in failing to object
to the improper comments, Appellant fails to show prejudice.
Strickland, 466 U.S. at 691. Even if the improper
testimony had been excluded, there is not a reasonable
probability that the outcome of the case would be different.
Harrington, 562 U.S. at 112 (2011). There was other
evidence in the instant case to support the allegation of
sexual abuse including, but not limited to, the testimony of
the hotel clerk, the victim's consistent account of the
incident, and the absence of an affirmative denial by
Appellant who told police he could not remember if he had
raped his daughter. Furthermore, the effect of the
expert's testimony confirming abuse was mitigated by her
subsequent admission that based on the physical examination,
she could not determine whether the abuse had taken place.
Under these circumstances, the trial court properly denied
Appellant's fifth claim, he argued that he is entitled to
a new trial because counsel failed to object when the
prosecutor improperly invoked religion in his closing