Brandon B. WILSON, Appellant,
STATE of Florida, Appellee.
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 courts summary denial of
his motion for postconviction relief. We affirm and write
only to address Wilsons 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, 104 S.Ct. 2052, 80
L.Ed.2d 674 (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. Wilsons 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 Wilsons 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 Wilsons
postconviction motion. In rejecting Wilsons 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) counsels performance was
deficient, i.e., it fell outside the broad range of
professionally acceptable performance; and (2) counsels
deficient performance prejudiced the defense, i.e., there is
a "reasonable probability that, but for counsels
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at
694, 104 S.Ct. 2052. 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, 130 S.Ct. 383,
175 L.Ed.2d 328 (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 Wilsons 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
Winokurs 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