Cooper v. State

391 So.3d 1032

Joel T. COOPER, Appellant,

v.STATE of Florida, Appellee.

No. 1D2022-4074

District Court of Appeal of Florida, First District.

August 7, 2024

On appeal from the Circuit Court for Wakulla County. J. Layne Smith, Judge.

Rachael E. Reese and Olivia M. Goodman of O’Brien Hatfield, P.A., Tampa, for Appellant.

Ashley Moody, Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee.

Per Curiam.

Appellant, Joel T. Cooper, appeals an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, raising three arguments, only one of which has merit. For the reasons that follow, we reverse the denial of Ground 2 of Appellant’s postconviction motion and remand with directions. We affirm as to the remaining claims without comment.

Facts

Appellant was convicted of burglary of a structure causing over $1,000 in damages (Count 1), petit theft (Count 2), and felony fleeing or attempting to elude an officer (Count 3) based on acts he committed in October 2009. He was sentenced to thirty years of imprisonment on Count 1, sixty days in jail on Count 2, and fifteen years of imprisonment on Count 3. We affirmed his judgment and sentence on direct appeal. Cooper v. State, 114 So. 3d 940 (Fla. 1st DCA 2013).

Appellant filed a motion for postconviction relief and an addendum thereto, in which he raised four claims of ineffective assistance of counsel and one cumulative error claim. In Ground 2, Appellant alleged that his trial counsel rendered ineffective assistance by failing to object to inadmissible hearsay that served as the State’s only evidence of the essential element of the burglary charge that the damages exceeded $1,000.

At trial, when the State inquired of the district manager of the burglarized Stop N Save if she knew how much it cost to repair the front door of the store, she responded that "[she] was given an estimate of about [$1,500] out-of-pocket that they paid besides whatever was presented to the insurance company or sent to you." Appellant’s trial counsel did not object to this testimony. On cross-examination, the manager acknowledged that she did not personally compile the information regarding the cost of the repairs or have any dealings with the insurance company, someone told her it cost $1,500, and she did not have any documentation to support that figure. In moving for a judgment of acquittal on the burglary charge, trial counsel argued that the State failed to prove that the damages exceeded $1,000 because the manager did not have direct knowledge of the damages amount, merely testified about what she was told by her boss, and did not provide any documentation to attest to the amount of damages. The State and the trial court relied on the manager’s unobjected-to hearsay testimony for the denial of the motion. Importantly, trial counsel conceded at that point that "[the State] I guess slipped one by me with the hearsay. I didn’t catch that fast enough."¹

The postconviction court held an evidentiary hearing, where Appellant testified, but neither party called trial counsel as a witness, and the court admitted into evidence the trial transcript. The postconviction court acknowledged that trial counsel should have objected to the district manager’s hearsay testimony about the amount of damages to the Stop N Save being about $1,500 based on an estimate she was given. The court also explained that while an attorney may decide not to raise a hearsay objection as a matter of strategy, it did not believe that counsel’s failure to object here was due to a strategic decision, noting that counsel seemed to have conceded in moving for a judgment of acquittal that he made a mistake by not raising a hearsay objection. The court, however, insisted that the State’s error was easily curable by calling another witness, despite postconviction counsel’s assertion that the court was speculating as there was nothing in the record to suggest that the State had the necessary evidence. Accordingly, the postconviction court denied Ground 2 upon finding that Appellant was not prejudiced because had his counsel raised a timely hearsay objection, the State could have cured its error by calling another witness to establish the amount of damages. This appeal followed.

Analysis

To prevail on an ineffective assistance of counsel claim, the defendant must prove that his trial counsel’s performance was deficient and that the deficient performance was prejudicial for it deprived him of a fair trial. Victorino v. State, 127 So. 3d 478, 486 (Fla. 2013). Counsel’s performance is deficient when his error falls outside the broad range of professionally acceptable performance. Johnston v. State, 70 So. 3d 472, 477 (Fla. 2011) (explaining that there is a strong presumption that counsel’s actions were reasonable, and strategic decisions do not constitute ineffective assistance if alternatives were considered and counsel’s decision was reasonable under the norms of professional conduct). Counsel’s deficient performance is prejudicial if there is a reasonable probability that the result of the proceeding would have been different absent counsel’s error. Victorino, 127 So. 3d at 486; see also State v. Mackendrick, 336 So. 3d 873, 876 (Fla. 1st DCA 2022) (explaining that the defendant must establish that the result of the trial proceeding would have been different).

[1, 2] We review the postconviction court’s findings of fact for competent, substantial evidence, but review the court’s legal conclusions on deficient performance and prejudice de novo. Lamarca v. State, 931 So. 2d 838, 847 (Fla. 2006). "The trial court’s reasoning and decision must be supported by competent, substantial evidence. … We do not defer to findings unsupported by such evidence." State v. King, 325 So. 3d 313, 315 (Fla. 1st DCA 2021).

[3] Burglary of a structure causing over $1,000 in damages is a first-degree felony that requires the State to prove that the defendant entered a structure with the intent to commit an offense therein and that he caused damage to the structure in excess of $1,000 in the course of committing the offense. § 810.02(1)(b)1, (2)(c)2, Fla. Stat. (2009); see also Fla. Std. Jury Instr. (Crim.) 13.1; Key v. State, 348 So. 3d 691, 694 (Fla. 1st DCA 2022). Inadmissible hearsay cannot establish the value of the damage. R.A.P. v. State, 575 So. 2d 277, 279 (Fla. 1st DCA 1991) (reversing the adjudication for third-degree felony criminal mischief, which required a showing of $1,000 or more worth...