TONNY PRESIDENT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tonny President appeals the summary denial of his postconviction Rule 3.850 motion alleging ineffective resentencing counsel. The court affirmed, holding that while the motion was not procedurally barred as successive, President failed to demonstrate prejudice as required for an ineffective assistance claim.
The court held that the motion was not procedurally barred as successive because President could not have included resentencing claims in his prior motion filed before resentencing. However, the court affirmed the denial because President failed to demonstrate a reasonable probability, beyond mere speculation, that he would have received a lesser sentence but for counsel's alleged errors.
[1] A postconviction motion alleging ineffective assistance of counsel based on events occurring during resentencing is not procedurally barred as successive to a prior motio…
[2] To demonstrate prejudice from ineffective assistance of counsel at resentencing, a defendant must show a reasonable probability of receiving a lesser sentence but for cou…
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Join FLexlaw to unlock all legal intelligence“President clearly could not have included his current claims in his prior motion, because that motion was filed before resentencing.”
Establishes that the motion was not procedurally barred as successive, as the claims could not have been raised earlier.
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Join FLexlaw to unlock all legal intelligencePresident was convicted in 2002 of robbery with a firearm and sentenced to life with a ten-year minimum mandatory sentence. After a prior Rule 3.850 m…
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Tonny President appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm, holding that President failed to demonstrate prejudice.
In 2002, President was convicted of robbery with a firearm and sentenced to life in prison with a ten-year minimum mandatory sentence. We affirmed that conviction and sentence on direct appeal. President v. State, 881 So.2d 1124 (Fla. 4th DCA 2004) (unpublished table decision). President later filed a rule 3.850 motion for postconviction relief based on a score-sheet error, and we reversed the denial of that motion and remanded for an eviden-tiary hearing or resentencing. See President v. State, 981 So.2d 673 (Fla. 4th DCA 2008); President v. State, 82 So.3d 889 (Fla. 4th DCA 2011). In January 2012, President was resentenced with a corrected scoresheet to twenty years in prison with a ten-year minimum mandatory sentence.
After resentencing,- President filed another rule 3.850 motion, alleging that re-sentencing counsel was ineffective. In response, the State argued that the motion was procedurally barred as successive to President’s previous rule 3.850 motion. The trial court summarily denied the motion, adopting the State’s response. President appeals.
We conclude that the trial court erred in finding that President’s motion was imper-missibly successive. President clearly could not have included his current claims in his prior motion, because that motion was filed before resentencing. See Fla. R. Crim. P. 3.850(h)(2).
We affirm, however, because we hold that President failed to demonstrate prejudice. While President alleged that counsel was ineffective for convincing him to testify at resentencing, for advising him to lie about having prior convictions other than those listed on the scoresheet, and for failing to present certain issues for mitigation, he failed to demonstrate a reasonable *1152probability, beyond mere speculation, that he would have received a lesser sentence but for counsel’s alleged errors. See, e.g., Derrick v. State, 983 So.2d 443, 462 (Fla.2008) (“[I]t is difficult to speculate whether the result of the resentencing would have differed if counsel had presented evidence of Derrick’s upbringing or mental health mitigation. However, in order to sufficiently undermine this Court’s confidence in the outcome of the resentencing, Derrick must rely on more than mere speculation.”).
Affirmed. 2039316631
DAMOORGIAN, LEVINE and KLINGENSMITH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Derrick v. State, 983 So. 2d 443 (Fla. 2008)
- Tonny President v. State, 981 So. 2d 673 (Fla. 4th DCA 2008)
- Tonny President v. State, 82 So. 3d 889 (Fla. 4th DCA 2011)