JEAN DAVID GERMAIN vs STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: August 19, 2022
• Docket: 21-2553
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

JEAN DAVID GERMAIN,

Appellant,

v. Case No. 5D21-2553 LT Case No. 2014-CF-000107

STATE OF FLORIDA,

Appellee.

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Opinion filed August 19, 2022

3.850 Appeal from the Circuit Court for Orange County, Tanya Davis Wilson, Judge.

Robert David Malove, of The Law Office of Robert David Malove, Ft. Lauderdale, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J. Jean David Germain appeals the lower court’s order denying his

motion for postconviction relief brought under Florida Rule of Criminal

Procedure 3.850. We affirm.

Following a jury trial, Germain was convicted of attempted first-degree

murder with a firearm and sentenced to life in prison. His judgment and

sentence were per curiam affirmed on direct appeal. Germain v. State, 257

So. 3d 138 (Fla. 5th DCA 2018). Thereafter, Germain filed his rule 3.850

motion, alleging several grounds of ineffective assistance of counsel. The

lower court summarily denied one ground and set the remaining grounds for

an evidentiary hearing.

Prior to the evidentiary hearing, and while Germain was represented

by private counsel, he independently filed an “Affidavit of Truth,” which

contained a plethora of irrelevant and nonsensical allegations. He also

requested that his counsel withdraw. Thus, at the outset of the evidentiary

hearing, the lower court granted counsel’s motion to withdraw, and Germain

was poised to proceed pro se. On five occasions, the court instructed

Germain to proceed; in each instance he instead raised irrelevant matters,

including demanding that the court address him in a particular way and then

repeatedly asking if the State would be responding to his incomprehensible

“Affidavit of Truth.” As a result, the court had Germain removed from the

2 courtroom and proceeded to hear evidence from the State, thereafter

denying Germain’s rule 3.850 motion.

On appeal, Germain argues that his due process rights were violated

when the lower court removed him from the courtroom, without warning, and

allowed the State to proceed on his rule 3.850 motion, foreclosing his ability

to present evidence and cross-examine witnesses. While we agree that an

explicit warning would have been preferable and might have remedied

Germain’s disruptive conduct, his due process argument nonetheless fails,

as it overlooks that his stubborn refusal to proceed and present his case

rendered him unable to meet his burden of proof. See Thomas v. State, 117

So. 3d 1191, 1194 (Fla. 2d DCA 2013) (“[A] defendant has the burden to

present evidence at a postconviction evidentiary hearing, and once he does

so, even if only through the presentation of his own testimony, the State must

present contradictory evidence.” (citations omitted)). Once Germain failed to

proceed, the court should have simply denied his motion on that basis,

rendering the continuation of the proceeding unnecessary. While under

normal circumstances the presentation of evidence outside the presence of

the defendant or counsel might have been problematic, in this case the

State’s presentation of evidence was superfluous. Accordingly, we reject

Germain’s efforts to establish a due process violation, as he was granted an

3 opportunity to be heard but forfeited it when he continually refused to present

his case.

AFFIRMED.

NARDELLA and WOZNIAK, JJ., concur.