Supreme Court of Florida
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No. SC19-1709
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JEFFREY LEE ATWATER,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
August 13, 2020
PER CURIAM.
Jeffrey Lee Atwater appeals an order of the circuit court denying his fifth
successive postconviction motion filed pursuant to Florida Rule of Criminal
Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
BACKGROUND
Atwater was convicted of first-degree murder and robbery and was
sentenced to death. The record reflects that during closing arguments, defense
counsel conceded that the State’s evidence demonstrated that Atwater committed
second-degree murder, though counsel argued there was insufficient evidence of
first-degree murder.
In his fifth successive postconviction motion, Atwater argued that he was
not informed of counsel’s plan to concede guilt, and if he had been informed, he
would not have agreed. Invoking McCoy v. Louisiana, 138 S. Ct. 1500 (2018),
Atwater asserted that counsel’s concession of guilt without his consent was a
structural error that entitled him to a new trial. McCoy held that it violates the
Sixth Amendment when an attorney concedes his client’s guilt over the client’s
“insistent objections.” Id. at 1512. Atwater requested an evidentiary hearing. He
also filed a motion to stay the case management conference until his counsel
returned from maternity leave. The trial court denied the motion to stay and
dismissed the successive postconviction motion, for two reasons.
First, the court found that the postconviction motion was untimely. Rule
3.851(d)(1) requires postconviction motions in capital cases to be filed within one
year of the judgment and sentence becoming final, subject to limited exceptions.
Atwater sought to avail himself of rule 3.851(d)(2)(B), which creates an exception
for motions that allege “the fundamental constitutional right asserted was not
established within the period provided for in subdivision (d)(1) and has been held
to apply retroactively.” The trial judge found that under the plain language of the
rule, a defendant cannot file a motion under this exception unless the constitutional
right asserted “has been held” to apply retroactively prior to the motion being filed.
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Because no court has held that McCoy applies retroactively, the trial court found
that this exception to the one-year time limitation did not apply.
Second, even if the postconviction motion had been timely, the court found
it was without merit. Taking as true the factual allegations in Atwater’s motion,
the court found that McCoy does not govern this case because Atwater did not
allege that counsel conceded his guilt over Atwater’s objections. Instead,
Atwater’s motion states that he never discussed with his attorneys the possibility of
conceding guilt.
The trial court found this case to be controlled by Florida v. Nixon, 543 U.S.
175, 178, 192 (2004), in which the Supreme Court held that where the defendant
“neither consents nor objects” to a proposed trial strategy of conceding guilt, there
is no “blanket rule demanding the defendant’s explicit consent.” Therefore, the
trial court found Atwater’s claim under McCoy was without merit and dismissed
the postconviction motion.
ANALYSIS
On appeal, Atwater challenges both the dismissal of his postconviction
motion and the trial court’s failure to conduct a case management conference or
evidentiary hearing prior to ruling on the motion. “We review a circuit court’s
summary rejection of a postconviction claim de novo, ‘accepting the movant’s
factual allegations as true to the extent they are not refuted by the record, and
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affirming the ruling if the record conclusively shows that the movant is entitled to
no relief.’ ” Dailey v. State, 279 So. 3d 1208, 1215 (Fla. 2019) (quoting Pardo v.
State, 108 So. 3d 558, 561 (Fla. 2012)).
We agree with the trial court that, accepting as true the factual allegations in
Atwater’s motion, he has failed to show entitlement to relief under McCoy.
Contrary to Atwater’s claim, the Supreme Court in McCoy did not hold that
counsel is required to obtain the express consent of a defendant prior to conceding
guilt. Instead, the Court held that if a defendant “expressly asserts that the
objective of ‘his defence’ is to maintain innocence of the charged criminal acts, his
lawyer must abide by that objective and may not override it by conceding guilt.”
McCoy, 138 S. Ct. at 1509 (quoting U.S. Const. amend. VI). Because McCoy
“vociferously insisted that he did not engage in the charged acts and adamantly
objected to any admission of guilt,” the Supreme Court found that counsel’s
concession of guilt violated McCoy’s “[a]utonomy to decide that the objective of
the defense is to assert innocence.” Id. at 1505, 1508.
Unlike the defendant in McCoy, Atwater does not allege that he expressed to
counsel that his objective was to maintain his innocence or that he expressly
objected to any admission of guilt. Instead, Atwater states that he did not discuss
the possibility of conceding guilt with counsel. The crux of Atwater’s argument is
to fault counsel for failing to discuss with Atwater the potential trial strategy of
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conceding guilt. But counsel’s duty to discuss trial strategy with the defendant was
established long before the Supreme Court’s decision in McCoy. In its 2004
decision in Nixon, for example, the Supreme Court noted that “[a]n attorney
undoubtedly has a duty to consult with the client regarding ‘important decisions,’
including questions of overarching defense strategy.” Nixon, 543 U.S. at 187
(quoting Strickland v. Washington, 466 U.S. 668, 688 (1984) (“From counsel’s
function as assistant to the defendant derive[s] the . . . dut[y] to consult with the
defendant on important decisions and to keep the defendant informed of important
developments in the course of the prosecution.”)). At its heart, Atwater’s claim is
not a McCoy claim; Atwater has not alleged that counsel conceded guilt over
Atwater’s objection. Therefore, the trial court was right to conclude that Atwater’s
allegations are facially insufficient to warrant relief under McCoy.
Because Atwater has not stated a facially sufficient claim, the trial court’s
failure to hold a case management hearing as provided for by rule 3.851(f)(5)(B)
was harmless error. Rivera v. State, 260 So. 3d 920, 926 (Fla. 2018) (citing
Groover v. State, 703 So. 2d 1035 (Fla. 1997)).
In light of this disposition, we find it unnecessary to address the trial court’s
ruling that a motion filed pursuant to rule 3.851(d)(2)(B) is untimely unless the
fundamental constitutional right asserted has already been held to apply
retroactively.
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CONCLUSION
Based on the foregoing, we affirm the dismissal of the postconviction
motion.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, and
COURIEL, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Pinellas County,
Joseph Anthony Bulone, Judge - Case No. 521989CF013299XXXXNO
Eric Pinkard, Capital Collateral Regional Counsel, Julie A. Morley, James L.
Driscoll, Jr., and Tracy M. Henry, Assistant Capital Collateral Regional Counsel,
Middle Region, Temple Terrace, Florida,
for Appellant
Ashley Moody, Attorney General, Tallahassee, Florida, and Marilyn Muir Beccue,
Senior Assistant Attorney General, Tampa, Florida,
for Appellee
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Jeffrey Lee Atwater v. State of Florida
Combined Opinion