Byron Mitchell v. The State of Florida

• Court: District Court of Appeal of Florida
• Decided: August 21, 2024
• Docket: 2023-1755
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 21, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-1755 Lower Tribunal No. F16-3043 ________________

Byron Mitchell, Appellant,

vs.

The State of Florida, Appellee.

An appeal from the Circuit Court for Miami-Dade County, Zachary James, Judge.

The Law Office of Robert David Malove, P.A., Hani Demetrious, and Robert David Malove (Fort Lauderdale), for appellant.

Ashley Moody, Attorney General, and Katryna Santa Cruz, Assistant Attorney General, for appellee.

Before FERNANDEZ, MILLER, and LOBREE, JJ.

PER CURIAM. Affirmed. See Strickland v. Washington, 466 U.S. 668, 669 (1984) (“A

convicted defendant’s claim that counsel’s assistance was so defective as to

require reversal of a conviction . . . requires that the defendant show, first,

that counsel’s performance was deficient and, second, that the deficient

performance prejudiced the defense so as to deprive the defendant of a fair

trial.”); see also Long v. State, 183 So. 3d 342, 345 (Fla. 2016) (“The

defendant must specifically identify acts or omissions of counsel that were

manifestly outside the wide range of reasonably competent performance

under prevailing professional norms.”); Alcorn v. State, 121 So. 3d 419, 430

(Fla. 2013) (“[T]o show prejudice, the defendant must demonstrate a

reasonable probability, defined as a probability sufficient to undermine

confidence in the outcome, that (1) he . . . would have accepted the offer had

counsel advised the defendant correctly, (2) the prosecutor would not have

withdrawn the offer, (3) the court would have accepted the offer, and (4) the

conviction or sentence, or both, under the offer’s terms would have been less

severe than under the judgment and sentence that in fact were imposed.”);

Dabbs v. State, 330 So. 3d 50, 55–56 (Fla. 4th DCA 2021) (distinguishing

between personal bias and judicial bias when evaluating likelihood of

success in disqualification motions); Liteky v. United States, 510 U.S. 540,

555–56 (1994) (“Not establishing bias or partiality . . . are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the

bounds of what imperfect men and women . . . sometimes display.”)

(emphasis in original); Jimenez v. Ratine, 954 So. 2d 706, 708 (Fla. 2d DCA

2007) (determining trial judge’s comments must exceed “expressions of

mere frustration, admonishment, or annoyance with counsel’s mannerisms,

tactics, or abilities” to support disqualification); Schwab v. State, 814 So. 2d

402, 411 (Fla. 2002) (finding evidence of counsel’s experience and other

efforts sufficiently supported his “informed tactical decision not to file a

motion to disqualify” trial judge); Diaz v. State, 132 So. 3d 93, 115 (Fla. 2013)

(“A defendant does not satisfy either prong of Strickland when claiming that

trial counsel was ineffective for failing to file a motion to disqualify if counsel

would not have prevailed on the motion.”).