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Wilson v. State

Florida Court of Appeals, First District

December 23, 2019

Brandon B. Wilson, 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 Alachua County. Mark W. Moseley, Judge.

          Andy Thomas, Public Defender, Steven L. Seliger and Jasmine Russell, Assistant Public Defenders, Tallahassee, for Appellant.

          Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief - Criminal Appeals, Tallahassee, for Appellee.

          PER CURIAM.

         Brandon 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).

         Wilson 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.

         The 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.

         The 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).

         In his 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.

         The 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.

         In 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).

         We 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.

         Affirmed.

          Wolf, J., concurs with opinion; Winokur, J., concurs with opinion [*] ; Jay, J, concurs with opinion.

          Wolf, J., concurring.

         I 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.

         Burglary

         Although 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.

         Prior 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).

         Interpreting 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 ...


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