FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                  _____________________________

                          No. 1D19-0590
                  _____________________________

JAMES ALLEN BLACK, III,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Escambia County.
Gary L. Bergosh, Judge.

                        September 24, 2020


B.L. THOMAS, J.

    Appellant challenges the trial court’s denial of his motion for
postconviction relief alleging ineffective assistance of trial counsel
and newly discovered evidence.

     Appellant was charged by information with one count of
robbery with a firearm arising from events that occurred on May
5, 2012. The victim was leaving a liquor store when Appellant
approached him and asked for a light. The victim pulled out a five-
dollar bill with his pack of cigarettes and Appellant pulled out a
gun, 1 put it to the victim’s head, and took the victim’s money. After
Appellant took the victim’s money, the victim ran to a convenience

    1   The gun was later found to be a BB gun.
store where he told a police officer that he had just been robbed.
Eventually, the officer took him to a Travel Inn where he identified
Appellant as the man who robbed him. According to the victim this
occurred at about two or three a.m., but the officers involved stated
that it occurred at about 5:30 a.m.

     Appellant offered a different version of events. He testified
that he resides at the Travel Inn and the victim came to buy crack
from him on the night of the incident. The victim only had five
dollars, so he also offered to give Appellant a BB gun as payment.
Appellant agreed and then told the victim that he would pay him
to pick up food for his sister. Appellant gave the victim his five
dollars back to pay for the food. The next time Appellant saw the
victim, he was pointing at him from the back of a police car at about
5:30 a.m.

     The jury found Appellant guilty of robbery with a weapon and
the trial court sentenced him to life in prison as a habitual felony
offender. Defendant appealed his judgment and sentence, which
were per curiam affirmed by this Court. 2 Appellant then filed a
motion for postconviction relief in the trial court.

     The trial court held a limited evidentiary hearing addressing
some of Appellant’s ineffective assistance of counsel claims and the
newly discovered evidence claim. After the hearing, the trial court
issued an extensive written order denying all of Appellant’s claims.

     “A claim of ineffective assistance of counsel is a mixed
question of law and fact.” Pennington v. State, 

, 154
(Fla. 1st DCA 2010). Appellate courts review a trial court’s
application of law to facts de novo.

reviewed for competent, substantial evidence. Id.; Blanco v. State,

, 1252 (Fla. 1997). A defendant has the burden to
prove a claim of ineffective assistance of counsel at an evidentiary
hearing on a Rule 3.850 motion. 

; see
also Fla. R. Crim. P. 3.850(f)(8)(B).

    The benchmark for judging an ineffective assistance of
counsel claim is whether counsel’s conduct so undermined the

    2   See Black v State, 

(Fla. 1st DCA 2014).
                                  2
proper functioning of the adversarial process that the trial cannot
be relied on as producing a just result. Strickland v. Washington,

, 686 (1984). First, Appellant must show that counsel’s
performance was deficient, meaning that counsel’s performance
fell below the standard guaranteed by the Sixth Amendment.
Campbell v. State, 

, 920–21 (Fla. 2018). Second,
Appellant must show that counsel’s deficient performance was
prejudicial.

Counsel’s performance is prejudicial where
there is a reasonable probability that, but for counsel’s errors, the
outcome of the proceeding would have been different. Wilson v.
State, 

, 110 (Fla. 1st DCA 2019).

     “Judicial scrutiny of counsel’s performance must be highly
deferential.” 

. Appellant is not entitled
to perfect or error-free counsel, only reasonably effective counsel.
Waterhouse v. State, 

, 343 (Fla. 1988). Just because
trial counsel’s strategy is unsuccessful, does not mean that their
representation is automatically inadequate. See Sireci v. State, 

, 120 (Fla. 1985).

     Appellant first argues that his trial counsel was ineffective for
failing to investigate and admit into evidence the operating hours
of the liquor store the victim was leaving when he was robbed.
Appellant admitted a photograph of the liquor store hours during
the evidentiary hearing, but the evidence did not substantiate
those hours on the day the robbery occurred. Additionally,
Appellant’s trial counsel testified that she did not recall, and her
notes did not reflect, that Appellant ever asked her to investigate
the hours of the liquor store. As a result, Appellant failed to
present evidence to support his ineffective assistance claim. See
Fla. R. Crim. P. 3.850(f)(8)(B).

     Additionally, Appellant argues that presenting the liquor
store hours would have discredited the victim’s version of events.
However, trial counsel’s defense strategy focused on discrediting
the victim by pointing out his alcohol consumption on the night of
the robbery and the difference between his timeline and that of the
officer’s. There is no indication that the outcome of Appellant’s
trial would have changed if trial counsel had presented evidence of
the liquor store hours where counsel already offered testimony


                                  3
discrediting the victim’s version of events. See 

; 

.

     Appellant’s second argument is that his trial counsel was
ineffective for failing to cross-examine the three officers who
testified for the State about their knowledge of the liquor store
hours. As previously stated, trial counsel’s defense strategy
focused on discrediting the victim by pointing out his alcohol
consumption and the differing testimonies as to when the robbery
occurred. Trial counsel presented testimony at trial showing the
conflicting timelines of the victim and the officers. Because the jury
was presented with evidence discrediting the victim due to a
possible problem with the victim’s timeline, trial counsel’s cross-
examination of the officers about the liquor store hours would not
have changed the outcome of Appellant’s case. See Wilson, 

at 110. Thus, the trial court’s finding was supported by
competent, substantial evidence. See 

.

     Appellant’s third argument is that his trial counsel was
ineffective for failing to cross-examine Officer Pierandozzi, the
officer who spoke to the victim on the night of the robbery,
concerning the victim’s conflicting version of events. To permit
impeachment with an inconsistent statement, the former
statement must be inconsistent with present testimony and must
relate to material matters pertaining to the subject matter of the
case. Hills v. State, 

, 319 (Fla. 1st DCA 1983).

     Appellant focuses on the victim’s differing version of events
between Officer Pierandozzi’s arrest report and the victim’s
deposition 3 and trial testimony. In the arrest report, the victim
stated that he was robbed at the Travel Inn while he was walking
from his house to his girlfriend’s house. At trial, the victim testified
that the robbery occurred after he left a liquor store near the
Travel Inn.

     At the evidentiary hearing, Appellant failed to present
evidence that the victim’s statement in the arrest report and his
testimony at trial were truly inconsistent and related to material

    3 The victim’s deposition was not included in the record, so
our focus is on the victim’s trial testimony.
                                   4
matters pertaining to the subject of the case. See 

. Whether the victim was robbed at the Travel Inn or after
he left a liquor store near the Travel Inn does not have anything
to do with whether he was robbed by Appellant. As a result, the
trial court presented competent, substantial evidence supporting
its finding that trial counsel’s cross-examination of Officer
Pierandozzi on this issue would not have resulted in a different
outcome at Appellant’s trial. See 

;

.

     Appellant’s fourth argument is that his trial counsel was
ineffective for failing to call a witness he requested. The witness
provided a written statement as to what he would have testified
had he been called at trial. However, the witness did not testify at
the evidentiary hearing, so the trial court had no way of confirming
the witness’s written statement. Additionally, Appellant’s trial
counsel testified that Appellant did not mention any witness other
than the one she called. As a result, the trial court presented
competent, substantial evidence supporting its finding that
Appellant’s trial counsel was not ineffective for failing to call this
witness at trial. See 

.

     Appellant’s fifth and sixth arguments have to do with the
lesser-included offense of robbery with a weapon. Appellant
contends that his counsel was ineffective for failing to object to the
standard jury instruction for the lesser-included offense of robbery
with a weapon and for failing to move for a judgment of acquittal
as to the lesser-included offense.

     A weapon is defined by statute as any “dirk, knife, metallic
knuckles, slungshot, billie, tear gas gun, chemical weapon or
device, or other deadly weapon except a firearm or a common
pocketknife, plastic knife, or blunt-bladed table knife. §
790.001(13), Fla. Stat. (2012) (emphasis added). A BB gun is
considered an “other deadly weapon” when it is used in such a
manner that it could have caused great bodily harm or death. C.W.
v. State, 

, 844 (Fla. 2d DCA 2016); Gooch v. State,

, 1190–91 (Fla. 1st DCA 1995).

     Here, the victim testified that Appellant held the gun to the
victim’s head and told him to give Appellant his money. Thus, the

                                  5
State presented evidence for the jury to determine that Appellant
used the BB gun in a manner that could have caused death or great
bodily harm to the victim. See 

. Because the
State presented sufficient evidence for the jury to determine that
the BB gun was used as a weapon, the trial court was correct in
concluding that trial counsel was not ineffective for failing to object
to the standard jury instruction for the lesser-included offense of
robbery with a weapon 4 and for failing to move for a judgment of
acquittal on such offense.

     Finally, Appellant argues that the trial court erred by denying
him postconviction relief on his claim of newly discovered evidence
based on a signed written statement from the victim recanting his
trial testimony. “Recantation by a witness called on behalf of the
prosecution does not necessarily entitle a defendant to a new trial.”
Armstrong v. State, 

, 735 (Fla. 1994). Recanting
testimony is exceedingly unreliable, so it is the duty of the trial
court to deny a new trial where it is not satisfied that such
testimony is true. Id.; Gorman v. State, 

, 1198 (Fla.
1st DCA 2019).

     Here, based on the evidence provided, the trial court
determined that it was not satisfied that the victim’s written
recantation was true. The trial court based its decision on the
victim’s testimony at the evidentiary hearing that he was forced to
sign the statement or Appellant and some other inmates were
going to “jump” him. Additionally, even though a prison employee
testified that he did not notice any threatening behavior, he
admitted that he was the only employee supervising
approximately 100 inmates in the medical unit and some other
inmate could have threatened the victim. Furthermore,
Appellant’s trial counsel testified that she attempted to contact the
victim about the written statement, but he refused to speak to her.

    4  Additionally, the Florida Supreme Court has held that trial
counsel’s failure to object to standard jury instructions that have
not been invalidated does not render counsel’s performance
deficient. Thompson v. State, 

, 665 (Fla. 2000). The
standard instruction used here is still valid, providing further
support for the trial court’s determination that trial counsel was
not ineffective.
                                  6
As a result, the trial court correctly determined that the victim’s
recantation was not true. See 

.

     The trial court provided competent, substantial evidence
supporting its factual findings denying Appellant’s ineffective
assistance of counsel claims. The trial court also properly applied
the law related to Appellant’s ineffective assistance of counsel
claims and newly discovered evidence claim. As a result, we affirm
the trial court’s order denying Appellant postconviction relief.

    AFFIRMED.

RAY, C.J., concurs; KELSEY, J., concurs in result only.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


James Allen Black, III, pro se, Appellant.

Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant
Attorney General, Tallahassee, for Appellee.




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