NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

FRANCISCO SIERRA SIERRA, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D15-2769 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

 ) 

Opinion filed August 4, 2017. 

Appeal from the Circuit Court for Collier 

County; Lauren L. Brodie, Judge. 

Francisco S. Sierra, pro se. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Elba Caridad Martin, 

Assistant Attorney General, Tampa, for 

Appellee. 

BLACK, Judge. 

 Francisco Sierra appeals from the denial of his motion for postconviction 

relief after an evidentiary hearing. We reverse the postconviction order and remand to 

the circuit court for a new trial. 
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 Following a jury trial, Sierra was convicted of two counts of lewd or 

lascivious molestation, in violation of section 800.04(5)(b), Florida Statutes (2009), and 

one count of lewd or lascivious exhibition, in violation of section 800.04(7)(a). In his 

motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 

3.850, Sierra alleged that trial counsel was ineffective for failing to move for a mistrial or 

accept the trial court's offer of a mistrial based on witnesses for the State vouching for 

the credibility of the victims.1 

 An evidentiary hearing was held to resolve Sierra's claim. At that hearing, 

Sierra's postconviction counsel asked the court to take judicial notice of the relevant 

portions of the trial transcript; counsel also read portions of the transcript into the 

postconviction record. The transcript reflects that the State's case rested on the 

credibility of the victims, particularly the victim who raised the allegations against Sierra 

and who had previously recanted her claims (the first-named victim). There was no 

dispute that both a school guidance counselor and the lead detective and investigator 

for the special victims unit testified on cross-examination by trial counsel as to the 

credibility of the first-named victim and the veracity of the allegations against Sierra. 

There was also no dispute that the trial court recognized the problem with the testimony. 

The trial court stated: 

There's a[] problem we have, folks, and that is this. We've 

had testimony in this trial from the State's witnesses . . . on

cross-examination of these witnesses, in effect, these 

witnesses were rendering their opinion as to the credibility of

 

 1Sierra raised a second claim of ineffective assistance of trial counsel 

which was summarily denied. He does not challenge the denial of that claim, and our 

reversal for new trial moots the issue. 
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the alleged victim. And there was no objection made. And, 

in effect, when the—we can't have a witness testify as to 

whether or not someone is deceptive or lying or truthful or 

otherwise. Because if we do that, we don't need a jury. 

That's what the jury is supposed to figure out. But those 

questions were elicited on cross-examination. So the court's 

concern is that we're going to have a 3.850 on this case. Do 

you know what I'm talking about [defense counsel]? 

 . . . .

So I don't know how—I mean, I don't want to—no one wants 

to try a case twice, but I see that happening in this case. 

Now, one possible solution is that both sides could agree to 

have a mistrial and we could try this case another day. 

 There was no agreement, and trial counsel did not move for a mistrial. 

Sierra was convicted of the charged offenses. 

 At the postconviction hearing, Sierra recalled that trial counsel's strategy 

had been to attack the investigation as minimal and one-sided and that he had agreed 

to that strategy. Sierra also testified that he was not present for the bench conversation 

where the trial court suggested a mistrial and that when counsel asked if he wanted a 

new trial, counsel did not explain what that would mean. 

 During his testimony, trial counsel confirmed that his strategy had been to 

attack the investigation as insufficient. He testified that he had intended to establish 

that the guidance counselor was not trained in detecting deception and that she did not 

question the truth of the story the first-named victim provided. When asked about the 

opinion testimony, he testified that he believed that objecting and approaching the 

bench would have drawn the jury's attention to the problematic testimony and would 

have given the jury the idea that he was losing control of the witness. As to the lead 

detective's testimony, trial counsel stated that his strategy had been to establish that the 
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investigation had initially stalled because the lead detective questioned the veracity of 

the allegations and that the investigation had otherwise been inadequate. He reiterated 

that he had not wanted to draw attention to the opinion testimony by objecting. 

 As to the trial court's mistrial suggestion, counsel testified that he had 

evaluated the trial and how it was progressing. He testified that he had believed it was 

not in Sierra's interest to agree to a mistrial because to do so would have eliminated 

what counsel felt was a strong issue for appeal—that the State had been permitted to 

amend the information after the jury had been impaneled and sworn.2 Counsel further 

testified that he believed that by agreeing to a mistrial based "on that one little 

problem"—that "the witness said an opinion"—he would have nullified what he 

perceived as a bigger issue. When asked if he had discussed this with Sierra and 

whether Sierra had agreed with the strategy to decline a mistrial, counsel stated, "I 

didn't specifically ask him because I didn't think that he—I basically told him what was 

happening and he just nodded yes, that he understood me." 

 In denying Sierra's motion, the postconviction court found that not 

objecting to the witnesses' testimonies and declining a mistrial were strategic decisions 

in light of the amended information issue. The court further found that Sierra failed to 

demonstrate an entitlement to relief. 

 "An attorney's performance must be reasonable under the prevailing 

professional norms, considering all of the circumstances, and viewed from the attorney's 

 

 2Whether the trial court erred in permitting the State to amend the 

information was raised on direct appeal. This court affirmed Sierra's convictions and 

sentences. Sierra v. State, 103 So. 3d 161 (Fla. 2d DCA 2012) (table decision). 
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perspective at the time of trial." Cabrera v. State, 766 So. 2d 1131, 1133 (Fla. 2d DCA 

2000). The question presented by Sierra's claim is whether a reasonably effective 

lawyer would have declined to move for a mistrial. In addressing this question we "must 

indulge a strong presumption that counsel's conduct falls within the wide range of 

reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 689 

(1984). However, that presumption is rebuttable; the judgment or strategy of counsel 

must be objectively sound. Id. " '[P]atently unreasonable' decisions, although 

characterized as tactical, are not immune" from challenge. Lamb v. State, 124 So. 3d 

953, 957 (Fla. 2d DCA 2013) (quoting Cabrera, 766 So. 2d at 1133). 

 Counsel's failure to move for a mistrial, or to accept the court's apparent 

offer of a mistrial, constitutes deficient performance. It was unreasonable for counsel to 

decline a new trial in favor of pursuing an issue for appeal which—if successful—would 

have garnered the same result. Cf. Davis v. State, 740 So. 2d 86, 86 (Fla. 1st DCA 

1999) (concluding that the untimely filed amended information was prejudicial and 

reversing and remanding for a new trial). The propriety of the court's ruling allowing the 

State to amend the information was not, as counsel believed, a "bigger issue." "Trial 

counsel's decision in this case to permit this evidence repeatedly during [his] own crossexamination of not one, but two State witnesses, and to take no action to try to alleviate 

the damage, was 'outside the wide range of professionally competent assistance.' " 

See Glancy v. State, 941 So. 2d 1201, 1203 (Fla. 2d DCA 2006) (quoting Strickland, 

466 U.S. at 690). 

It is elemental in our system of jurisprudence that the jury is

the sole arbiter of the credibility of witnesses. Barnes v. 

State, 93 So. 2d 863 (Fla. 1957). Thus, it is an invasion of 
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the jury's exclusive province for one witness to offer his 

personal view on the credibility of a fellow witness. 

Page v. State, 733 So. 2d 1079, 1081 (Fla. 4th DCA 1999) (quoting Boatwright v. State, 

452 So. 2d 666, 668 (Fla. 4th DCA 1984)). "It is error to admit the testimony of a 

witness that is offered to vouch for the credibility of another witness." Rhue v. State, 

693 So. 2d 567, 568 (Fla. 2d DCA 1996). Where a police officer's testimony is used to 

bolster the credibility of a victim, the error cannot be deemed harmless. Cavaliere v. 

State, 147 So. 3d 628, 629 (Fla. 2d DCA 2014) (quoting Lee v. State, 873 So. 2d 582, 

584 (Fla. 3d DCA 2004)); see also Page, 733 So. 2d at 1081 ("It is especially harmful 

for a police witness to give his opinion of a witnesses' [sic] credibility because of the 

great weight afforded an officer's testimony."). And "[a]lthough the prohibitions on 

civilians vouching for a victim's credibility have not been treated as harshly by the 

courts, such testimony can still be harmful error[.]" Cavaliere, 147 So. 3d at 629. 

 "The benchmark for judging claims of ineffectiveness . . . is whether the 

conduct of counsel 'so undermined the proper functioning of the adversarial process 

that the trial cannot be relied on as having produced a just result.' " Cabrera, 766 So. 

2d at 1133 (quoting Downs v. State, 453 So. 2d 1102, 1106 (Fla. 1984) (quoting 

Strickland, 466 U.S. at 686)). The credibility of the victims was the pivotal issue in this 

case. See Rhue, 693 So. 2d at 570. A guidance counselor and the lead detective 

vouched for the first-named victim's credibility. By failing to object to the bolstering 

testimony or move for a mistrial, "the jury was left with the impression that it could 

properly take into account the detective's opinion," as well as the guidance counselor's. 

See Cavaliere, 147 So. 3d at 629 (quoting Lee, 873 So. 2d at 583-84). "The concern of 
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the court evaluating an ineffectiveness claim should be whether the result of a particular 

proceeding is unreliable because of a breakdown in the adversarial process." Lamb, 

124 So. 3d at 957 (quoting Cabrera, 766 So. 2d at 1134). And in this case the opinion 

testimony was clearly damaging, "so undermin[ing] the proper functioning of the 

adversarial process that the trial cannot be relied on has having produced a just result." 

See Glancy, 941 So. 2d at 1203; see also Cavaliere, 147 So. 3d at 630. 

In the same way that an appeal not taken because of late 

filing prejudices a defendant [for purposes of the Strickland 

analysis] by denying him "the opportunity for a second trial 

he otherwise would have had," so too does counsel's failure 

to request a mistrial deprive [the defendant] of a "procedural 

right to which the law entitle[d]" him. 

Middleton v. State, 41 So. 3d 357, 362 (Fla. 1st DCA 2010) (third alteration in original) 

(quoting United States v. Ramsey, 323 F. Supp. 2d 27, 40 (D.D.C. 2004)); cf. Lamb, 

124 So. 3d at 956 ("The failure to file a motion for new trial can support a claim for 

postconviction relief."); Manley v. State, 605 So. 2d 1327, 1328 (Fla. 2d DCA 1992) 

(affirming denial of postconviction relief where prejudice was not established because 

the court was "not convinced of any strong likelihood a new trial would have been 

ordered"). Where there is a reasonable probability that a mistrial would have been 

granted had counsel made the appropriate motion, prejudice has been established. Cf. 

Lamb, 124 So. 3d at 957 ("We conclude that there is a reasonable probability that the 

judge would have granted a new trial if defense counsel had filed the proper motion 

based on the weight of the evidence."). Moreover, "[g]iven the significance of the issue, 

we must conclude [that] there is a reasonable probability that, but for trial counsel's 

omissions, the outcome of the proceeding would have been different." Rhue, 693 So. 
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2d at 570. 

 Counsel's decision to forego a new trial in favor of the mere possibility of a 

new trial following a successful appeal was not reasonable trial strategy. Sierra was 

deprived of a fair trial; counsel's rejection of the remedy offered by the court prejudiced 

Sierra. See Garrido v. State, 162 So. 3d 1069, 1072 (Fla. 4th DCA 2015). Accordingly, 

we reverse the denial of Sierra's motion for postconviction relief and remand for a new 

trial. 

 Reversed and remanded. 

VILLANTI and SALARIO, JJ., Concur.