Bowers v. State

929 So. 2d 1199, 2006 Fla. App. LEXIS 9109, 2006 WL 1569915
CourtDistrict Court of Appeal of Florida
DecidedJune 9, 2006
DocketNo. 2D04-2468
StatusPublished
Cited by1 cases

This text of 929 So. 2d 1199 (Bowers v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowers v. State, 929 So. 2d 1199, 2006 Fla. App. LEXIS 9109, 2006 WL 1569915 (Fla. Ct. App. 2006).

Opinion

DAVIS, Judge.

Russell Bowers appeals the trial court’s denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Bowers alleged five grounds of ineffective assistance of trial counsel. We affirm the trial court’s order on four of the grounds without discussion but reverse as to one issue.

Bowers was charged with burglary of a structure and grand theft. Following conviction after a jury trial, Bowers was sentenced to fifteen years in prison for the grand theft and to a consecutive five-year term for the burglary. This court affirmed his conviction and sentence, noting that “the only issue of arguable merit is whether Mr. Bowers’ trial counsel provided ineffective assistance in a manner that can be conclusively determined from the face of the record” and concluding that any ineffectiveness claims were “more appropriately raised in a [rule 3.850 motion].” Bowers v. State, 850 So.2d 617, 617 (Fla. 2d DCA 2003).

Accordingly, Bowers alleged in his post-conviction motion that his trial counsel had rendered ineffective assistance by eliciting numerous details of Bowers’ prior criminal record during his direct examination of Bowers. Most of these details concerned [1200]*1200matters about which the State would not have been entitled to inquire. At the post-conviction evidentiary hearing, trial counsel testified that Bowers’ credibility had been at issue at trial. The State had presented Joe Boyer, who was originally supposed to be Bowers’ alibi witness but who ultimately accused Bowers of the crimes. As such, the question of Bowers’ guilt came down to whom the jury believed — Bowers or Boyer.

Trial counsel suggested at the postcon-viction hearing that it was his trial strategy to have Bowers admit all the details of his criminal record in the hope that such candid testimony on these matters would influence the jury to accept his testimony regarding the burglary and grand theft. The postconviction court accepted this explanation and denied Bowers’ rule 3.850 motion, finding that trial counsel’s actions were reasonable strategic decisions that are not subject to collateral attack. We disagree.

To obtain postconviction relief for ineffective assistance of trial counsel, Bowers must allege and show that trial counsel’s performance was deficient and that such deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish ineffective assistance when the issue involves a strategic decision made by trial counsel, the movant must show that the strategy was “unreasonable.” Florida v. Nixon, 543 U.S. 175, 189, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). To be reasonable, the strategy must be based on informed professional judgment. Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). “There is a strong presumption of reasonableness that must be overcome, and strategic or tactical decisions by counsel made after a thorough investigation are ‘virtually unchallengeable.’ Downs [v. State, 453 So.2d 1102, 1108 (Fla.1984) ]. Nevertheless, ‘patently unreasonable’ decisions, although characterized as tactical, are not immune. Roesch v. State, 627 So.2d 57, 58 n. 3 (Fla. 2d DCA 1993).” Light v. State, 796 So.2d 610, 616 (Fla. 2d DCA 2001).

In our review, we must defer to the trial court’s factual findings that are supported by competent, substantial evidence. Id. at 615. However, the legal conclusions of the trial court are reviewed de novo. Id. Here, the trial court’s order determined as a matter of fact that Bowers’ counsel’s decision to question Bowers regarding his prior criminal convictions amounted to trial strategy. Because this finding is supported by trial counsel’s post-conviction hearing testimony, the issue we must resolve is whether the trial court erred in determining that the strategy was reasonable.

At the beginning of his direct examination of Bowers, trial counsel inquired into Bowers’ prior convictions. Answering his attorney’s specific questions, Bowers informed the jury that he had been convicted of breaking and entering when he was nineteen and of receiving stolen property when he was twenty-three. He further admitted that at the time of the trial, he was on probation for possession of marijuana. Upon the completion of direct examination, the prosecutor requested a bench conference to advise Bowers’ counsel that he had omitted two convictions for carrying a concealed firearm. The trial court granted defense counsel’s request to reopen the direct examination, at which time Bowers told the jury that he had been convicted in Michigan on concealed firearm charges and that he had been adjudicated a habitual offender. In response to counsel’s questioning, Bowers also testified that he had been sentenced to time served on the breaking and entering charge; trial counsel then specified that time served was thirty days in county jail.

[1201]*1201During cross-examination, the Assistant State Attorney went into further detail, obtaining Bowers’ confirmation that he had four prior felony convictions and one misdemeanor conviction. The prosecutor then characterized the breaking and entering charge as a burglary. Although Bowers did not agree, the prosecutor showed him a copy of the charge, which read “breaking and entering building with the intent to commit larceny.” Bowers then admitted that he had been to prison on some of the charges. Bowers’ counsel did not object to any of these questions.

By taking the stand to testify, Bowers’ prior criminal record became subject to disclosure. See § 90.610, Fla. Stat. (2000). However, absent trial counsel’s direct examination, that disclosure would have been limited to the number of felony convictions or convictions for misdemeanors involving dishonesty or false statement. See Burst v. State, 836 So.2d 1107, 1108 (Fla. 3d DCA 2003). In fact, it is accepted strategy for defense counsel to elicit this limited information from a defendant on direct examination in an attempt to “steal the thunder of the impeachment” away from the State by preventing it from inquiring into these matters on cross-examination. Lawhorne v. State, 500 So.2d 519, 521 (Fla.1986).

However, the information that Bowers’ counsel elicited from Bowers far exceeded that which the jury was entitled to know. Had trial counsel not volunteered the information, the nature of the charges would not necessarily have been admissible. See Livingston v. State, 682 So.2d 591 (Fla. 2d DCA 1996) (stating that a prosecutor may not cross-examine a defendant about the specific nature of his or her prior convictions if the defendant correctly answers the prosecutor’s questions as to the number of the defendant’s prior convictions resulting from the commission of any felonies or any misdemeanors involving dishonesty or false statement). By informing the jury that Bowers had been convicted of grand theft and breaking and entering, trial counsel impugned his client’s credibility in front of the jury. See Dodson v. State, 356 So.2d 878, 879 (Fla. 3d DCA 1978) (“Crimes [involving theft] as distinguished from acts of violence ‘are universally regarded as conduct which reflects adversely on a man’s honesty and integrity.’ ” (quoting Gordon v. United States,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Caleb Fernandez v. State of Florida
District Court of Appeal of Florida, 2025

Cite This Page — Counsel Stack

Bluebook (online)
929 So. 2d 1199, 2006 Fla. App. LEXIS 9109, 2006 WL 1569915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowers-v-state-fladistctapp-2006.