WELLS, Judge.
The State of Florida appeals from an order granting Juan Medina's motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Because we find that Medina failed to satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we reverse.
In case number F05-26150, Medina was charged with possession of cocaine with intent to sell. On September 6, 2005, Medina entered a negotiated plea and was placed on drug offender probation. While on probation, Medina was arrested and charged with attempted second-degree murder with a firearm and misdemeanor battery in case number F06-2603. The alleged victim of these crimes was Medina's girlfriend, with whom he was living at the time.
Following his arrest on these charges, the State sought to revoke Medina's probation in case number F05-26150, asserting that Medina had violated the conditions of his probation by: (1) committing the offense of attempted second-degree murder; (2) committing the offense of battery; and (3) being in possession of a firearm while on probation.
The testimony at the probation revocation hearing came from three witnesses: Medina's probation officer, his girlfriend, and his girlfriend's sister. The probation officer testified as to the terms of Medina's probation, which required him to refrain from engaging in any further criminal acts and from possessing, owning, or carrying any firearm. Medina's girlfriend testified that during a verbal altercation at her apartment, Medina punched her in the face giving her two black eyes and that, when she attempted to flee the apartment with her child, Medina locked himself in a bedroom with the keys to her car. She further testified that after she pried the bedroom door open with a knife and a fork, Medina grabbed her by the arms, causing her to drop the knife and fork, reached for a gun and shot her in the neck. The girlfriend's sister testified that Medina had called her a number of times immediately after the shooting, first telling her that the girlfriend had been shot while she and Medina were playing around, but later admitting that the gun had gone off during an argument. At no time did Medina ever tell the sister that he shot his girlfriend in self-defense. Medina called no witnesses at the probation violation hearing and did not testify on his own behalf.
Finding that the State had established by a preponderance of the evidence that Medina had violated the conditions of his probation by possessing a firearm, and by committing attempted second-degree murder, and by committing misdemeanor battery, the trial court revoked Medina's probation and sentenced him to fifteen years in state prison on the underlying drug offense in case number F05-26150. On October 28, 2008, Medina entered a nolo contendere plea to the attempted second-degree murder and misdemeanor battery charges in case number F06-2603. As part of that plea, the parties stipulated that the plea would be set aside if the revocation of his probation in case number F05-26150 was overturned either on appeal or in any post-conviction proceeding.
This court subsequently affirmed revocation of Medina's probation in case number F05-26150. Medina v. State, 7 So.3d 1111 (Fla. 3d DCA 2009). Medina then filed the instant Rule 3.850 post-conviction motion seeking to vacate the probation revocation order. In that motion, Medina argued that trial counsel was ineffective in advising him not to testify at the revocation hearing without telling him it was his right to do so, and that had he been so advised of that right and the risks and benefits of testifying, he would have testified and would have established that he acted in self-defense. According to Medina, he would have testified that what started out as play resulted in him locking himself in the bedroom to avoid further conflict with his girlfriend and that when she kicked the bedroom door open and came at him with a steak knife, he grabbed a gun and accidentally shot her. He also claimed that had he been allowed to so testify, that the testimony of two detectives, detectives Simpo and Byrd, would have bolstered his defense by confirming that after the shooting the girlfriend had told them that the events were initiated during "play-fighting," and that the girlfriend had initially stated that the shooting was an accident.
Although Medina's motion addresses the attempted second-degree murder charge and defense counsel's alleged failure to present Medina's testimony to establish self-defense for the shooting, there is no allegation that defense counsel's performance was deficient with regard to the other violations of probation: possessing a firearm
To prevail on a post-conviction motion claiming ineffective assistance of counsel, a defendant must show not only that counsel's performance was deficient, but also that the defendant was prejudiced by the deficient performance:
Strickland, 466 U.S. at 687, 104 S.Ct. 2052; see also Whitfield v. State, 923 So.2d 375, 379 (Fla.2005) (confirming that an ineffective assistance claim under Strickland has two "prongs," deficient performance and prejudice stemming therefrom, and that both prongs must be established to justify post-conviction relief).
Following an evidentiary hearing, the court below granted Medina's motion for post-conviction relief and vacated his convictions and sentences in both cases, finding that Medina's counsel was ineffective (1) because "there is no record evidence from the probation [violation] proceeding, such as a colloquy by the judge, that the defendant was made aware of his right to testify, and that he himself made the requisite knowing and intelligent decision to waive his right to testify," and (2) because "the record is completely devoid of the issue [of the potential benefits and risks of testifying, particularly with regard to Mr. Medina's self-defense claim] ever having been addressed with [Medina]."
However, even assuming that counsel's performance was deficient in this regard, Medina still would be entitled to no relief because he failed to satisfy the prejudice prong enunciated in Strickland. See Oisorio v. State, 676 So.2d 1363, 1364-65 (Fla.1996) (holding that "in order to obtain postconviction relief, a defendant claiming his or her right to testify was violated must show that counsel's performance was deficient and that the deficient performance prejudiced the defense"). "In order to establish the prejudice prong under Strickland, `[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Preston v. State, 970 So.2d 789, 803 (Fla.2007) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Considering the totality of the evidence in this case, that burden was not met. See Williamson v. State, ___ So.3d ___, 38 Fla. L. Weekly S278, 2013 WL 1830934 (Fla.2013) ("`In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.'" (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052)).
Medina's Rule 3.850 motion focused solely on purported deficiencies in counsel's representation regarding the attempted second-degree murder charge. That motion does not address how counsel's representation was deficient as to the other two grounds on which his probation was revoked: the gun possession and the battery charges. While the post-conviction motion in a single footnote does state that "[t]he gun is an antique," the motion does not state how counsel was deficient in failing to establish this as a fact, and does not allege how Medina would have established that the gun was an antique had he been properly advised and allowed to testify at the revocation hearing. See § 790.001(1), (6) Fla. Stat. (2006) (defining "antique firearm" as "any firearm manufactured in or before 1918 ... or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade," and providing that "[t]he term `firearm' does not include an antique firearm unless the antique firearm is used in the commission of a crime"). Based on the record, this failure most likely may be ascribed to the fact that, at the evidentiary hearing, Medina's lawyer testified without contradiction that the gun was
In fact, Medina's defense to the gun violation charge was not that the gun was an antique but that possession of it is purportedly a specific intent crime and that because Medina
The same analysis applies to the third ground on which Medina's probation was revoked, the misdemeanor battery charge. As with the gun possession charge, Medina's Rule 3.850 motion does not assert that his attorney's representation regarding this aspect of the probation violation was deficient. Nor did he testify at the evidentiary hearing what testimony he would have given at the probation revocation hearing to exculpate himself on this charge had he been allowed to testify at the probation violation hearing. To the contrary, he admitted at the evidentiary hearing that he and his girlfriend had gotten into a "physical altercation prior to the shooting," that the altercation "escalated to the point" of becoming "physically violent between the two of [them]," and that his girlfriend "ended up with a black eye" because he "punched her in the eye." This is hardly exculpatory.
In short, even if counsel's performance was deficient
Moreover, we cannot discern, from either the evidentiary hearing transcripts or the court's written order, any finding of prejudice with respect to counsel's representation on the attempted second-degree murder charge. Rather, it appears the court below expressly avoided making such a determination, finding that "[t]his Court, does not, at this time, address the credibility of Mr. Medina's specific testimony regarding his claim of self-defense."
Accordingly, because we find that Medina failed to satisfy Strickland's two-pronged test for evaluating an ineffective assistance of counsel claim, we reverse and remand with instructions to reinstate the vacated judgments and convictions in case numbers F05-26150 and F06-2603.
Reversed and remanded with instructions.