Brandon B. Wilson, Appellant,
State of Florida, Appellee.
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 Alachua County. Mark W.
Thomas, Public Defender, Steven L. Seliger and Jasmine
Russell, Assistant Public Defenders, Tallahassee, for
Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief
- Criminal Appeals, Tallahassee, for Appellee.
B. Wilson seeks review of the trial court's summary
denial of his motion for postconviction relief. We affirm and
write only to address Wilson's claim that defense counsel
was ineffective for failing to object to a jury instruction
on first-degree felony murder based on the predicate felony
of burglary where the alleged burglary occurred in a parking
garage open to the public. We conclude that summary denial of
this claim was proper because Wilson did not demonstrate
entitlement to relief under Strickland v.
Washington, 466 U.S. 668, 694 (1984).
was indicted for first-degree premeditated murder. At trial,
the State presented evidence that Wilson and two other men
followed the victim from a nightclub into a parking garage
with the intent to rob him of money. After a brief
altercation, Wilson pulled a gun and fatally shot the victim
twice before fleeing. Wilson's primary defense centered
on the identity of the shooter, i.e., that he was not
involved in the shooting.
trial court instructed the jury that it could find Wilson
guilty of first-degree murder on two alternative theories:
(1) the killing was premeditated, or (2) the death was a
consequence of Wilson's commission or attempted
commission of burglary (felony murder). Under the felony
murder theory, the court instructed that in order to prove
the crime of burglary the State had to prove the following
two elements beyond a reasonable doubt: (1) Wilson entered
the parking garage with the permission or consent of the city
that owned it; and (2) after entering the garage, Wilson
"remained therein" with the intent to commit or
attempt to commit a robbery. The court further instructed
that to prove the crime of robbery, the State had to prove
the following four elements beyond a reasonable doubt: (1)
Wilson took or attempted to take money from the person or
custody of the victim; (2) force, violence, assault, or
putting in fear was used in the course of the taking; (3) the
property taken was of some value; and (4) the taking was with
the intent to permanently or temporarily deprive the victim
of his right to the property or any benefit from it.
jury returned a general verdict finding Wilson guilty of
first-degree murder. The trial court adjudicated Wilson
guilty and sentenced him to life imprisonment. On appeal,
this court affirmed the conviction and sentence. Wilson
v. State, 165 So.3d 47 (Fla. 1st DCA 2015).
motion for postconviction relief, Wilson raised four claims
of ineffective assistance counsel. In his first claim, he
alleged that defense counsel was ineffective in failing to
object when the trial court read an erroneous jury
instruction on first-degree felony murder. Specifically, he
asserted that he could not have committed the murder during a
burglary because the location of the murder was a public
parking garage that he was lawfully within at the time of the
offense. Because it could not be determined whether the jury
convicted him based on an invalid felony murder theory, he
claimed that he was entitled to a new trial.
trial court entered an order summarily denying Wilson's
postconviction motion. In rejecting Wilson's first claim
of ineffective assistance of counsel, the court found that
(1) the Florida Legislature amended the burglary statute in
2001 to allow a conviction for burglary under circumstances
similar to those in this case; and (2) defense counsel did
object and argue at trial that Wilson could not have
committed felony murder based on an allegation of burglary.
This appeal followed.
order to establish ineffective assistance of counsel, the
defendant must show that (1) counsel's performance was
deficient, i.e., it fell outside the broad range of
professionally acceptable performance; and (2) counsel's
deficient performance prejudiced the defense, i.e., there is
a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at
694. The test for prejudice under Strickland is very
different from the test for prejudicial error on direct
appeal because "once a conviction has been affirmed on
direct appeal, 'a presumption of finality and legality
attaches to the conviction and sentence.'"
Sanders v. State, 946 So.2d 953, 959 (Fla. 2006)
(quoting Goodwin v. State, 751 So.2d 537, 546 (Fla.
1999)). Specifically, if the appellant demonstrates that the
trial court committed error on direct appeal, the burden is
on the State "to prove beyond a reasonable doubt that
the error complained of did not contribute to the verdict or,
alternatively stated, that there is no reasonable possibility
that the error contributed to the conviction." State
v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). However,
in a postconviction proceeding, "Strickland
places the burden on the defendant, not the State, to show a
'reasonable probability' that the result would have
been different." Wong v. Belmontes, 558 U.S.
15, 27 (2009).
conclude as a matter of law that Wilson failed to establish
entitlement to relief under the high burden imposed by
Strickland. Accordingly, we affirm the summary
denial of Wilson's postconviction claim.
J., concurs with opinion; Winokur, J., concurs with opinion
[*] ; Jay, J,
concurs with opinion.
concur with the decision to affirm. I write separately to
express disagreement with the viewpoint asserted in Judge
Winokur's opinion that the 2001 amendment to the burglary
statute effectively negated the "open to the public
defense" to the charge of burglary. I would specifically
note that Judge Winokur's assertion has not been adopted
by a majority of the panel.
the Legislature amended the burglary statute in 2001, no
court has directly addressed whether the amendment had any
effect on the "open to the public" defense.
to 2001, Florida defined burglary as "entering or
remaining in a dwelling, a structure, or a conveyance with
the intent to commit an offense therein, unless the
premises are at the time open to the public or the
defendant is licensed or invited to enter or remain."
§ 810.02(1), Fla. Stat. (2000) (emphasis added).
that statutory language, the Florida Supreme Court held that
if a building or structure was open to the public, that was a
complete defense to the charge of ...