Third District Court of Appeal
State of Florida
Opinion filed July 19, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1186
Lower Tribunal No. 09-4484
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Clarence Moore,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Marisa Tinkler-
Mendez, Judge.
Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant
Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney
General, for appellee.
Before ROTHENBERG, C.J., and EMAS and LOGUE, JJ.
EMAS, J.
Clarence Moore appeals from a summary denial of his motion for
postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. On
appeal, Moore asserts that the record establishes that trial counsel failed to object
to improper comments made by the State during closing argument, and further
asserts that he was entitled to an evidentiary hearing.
The analysis of a claim of actual ineffective assistance of trial counsel
necessarily begins with Strickland v. Washington, 466 U.S. 668 (1984). A claim
under Strickland requires the defendant to establish two prongs: constitutionally
deficient performance and actual prejudice. As the Strickland Court elaborated:
First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction. .
. resulted from a breakdown in the adversary process that renders the
result unreliable.
Id. at 687.
In assessing the deficient performance prong, the relevant question is: Did
counsel's performance fall below an objective standard of reasonableness, when
measured under prevailing professional norms? Id. at 688. In assessing the actual
prejudice prong, the relevant question is whether there is “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
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have been different.” Id. at 694. A reasonable probability is “a probability
sufficient to undermine confidence in the outcome” of the proceeding. Id.
Upon our review of the record, and in the context of the evidence and
arguments presented at trial, we find that the comments made in closing argument
were not improper. It is axiomatic that trial counsel cannot be deemed ineffective
for failing to raise a meritless objection. Teffeteller v. Dugger, 734 So. 2d 1009,
1023 (Fla. 1999).
Even if these comments could be characterized as improper,1 Moore’s claim
of ineffective assistance of counsel would still fail because he cannot meet the
prejudice prong of Strickland. The comments were brief and isolated, any
arguable prejudice was slight, and was certainly insufficient to undermine
confidence in the outcome of the trial. Had counsel objected to these comments
(and the trial court deemed them improper) the objections would have been
sustained and a curative instruction given. Thus, there is no reasonable probability
1 On appeal, Moore asserts the State made four improper (and unobjected-to)
comments in the course of closing argument. However, only two of those four
comments were raised in the operative motion for postconviction relief. Because
the remaining two grounds were neither considered nor ruled on by the trial court,
they are not preserved for appellate review. See § 924.041(3), Fla. Stat. (2016)
(providing: “An appeal may not be taken from a judgment or order of a trial court
unless a prejudicial error is alleged and is properly preserved or, if not properly
preserved, would constitute fundamental error”); Castor v. State, 365 So. 2d 701,
703 (Fla. 1978) (holding: “As a general matter, a reviewing court will not consider
points raised for the first time on appeal.”). Nevertheless, even if we considered all
four comments raised in this appeal, our determination would remain the same.
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that, but for counsel’s failure to object, the outcome of the proceeding would have
been different or that “trial counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at
687. We therefore affirm the trial court’s order summarily denying Moore’s
motion for postconviction relief.
Affirmed.
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