FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D23-818

LT Case No. 2020-CF-000891-A

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JEREMY NEWCOMER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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3.850 appeal from the Circuit Court for Hernando County.

Daniel B. Merritt, Jr., Judge.

Jeremy Newcomer, East Palatka, pro se.

Ashley Moody, Attorney General, Tallahassee, and Pamela J. 

Koller, Assistant Attorney General, Daytona Beach, for Appellee.

October 6, 2023

HARRIS, J.

Appellant, Jeremy Newcomer, appeals the summary denial of 

his motion for postconviction relief filed pursuant to Florida Rule 

of Criminal Procedure 3.850. Because portions of claims one and 

three are not conclusively refuted by the record, we reverse and 

remand for attachment of the records or an evidentiary hearing. 

We also remand for the court to provide Newcomer an opportunity 

to amend claim two of his postconviction motion.
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Newcomer was charged with felony fleeing or attempting to 

elude, felony petit theft, and no valid driver’s license. At trial, the 

State’s key witness, Officer Feola, testified that he was in his 

patrol car behind a vehicle being driven by Newcomer and, after 

running the vehicle’s license plate, learned that the tag was 

reported stolen. Feola followed Appellant’s vehicle approximately 

one quarter of a mile at about 50–55 mph, during which time 

Newcomer continued accelerating “much faster” than Feola was, 

“changing lanes very abruptly and aggressively, trying to 

maneuver his way around cars to evade” him.

At the conclusion of the trial, the jury convicted Newcomer of 

felony fleeing or attempting to elude and no valid driver’s license. 

The trial court sentenced Newcomer to 12 years in prison. This 

Court affirmed his judgment and sentence. Newcomer v. State, 334 

So. 3d 624 (Fla. 5th DCA 2022).

Newcomer subsequently filed a rule 3.850 postconviction 

motion. In that motion, Newcomer alleged that his trial counsel 

was ineffective for failing to depose and investigate the State’s key 

witness, Officer Feola; failing to investigate video footage; failing 

to investigate, subpoena, and call an eyewitness; advising 

Newcomer not to testify; and failing to advise Newcomer to accept 

a plea offer. The trial court summarily denied each of these claims, 

and Newcomer now challenges that summary denial.

To state a facially sufficient ineffective assistance of counsel 

claim, the defendant must allege sufficient facts to establish a 

prima facie case under the two-part test established in Strickland 

v. Washington, 466 U.S. 668 (1984). The defendant must show 

counsel’s performance was deficient and that the deficient 

performance prejudiced the defense. Id. at 687.

The standard of review of a summary denial of a rule 3.850 

motion is de novo. Lebron v. State, 100 So. 3d 132, 133 (Fla. 5th 

DCA 2012). “To uphold the trial court’s summary denial of claims 

raised in a 3.850 motion, the claims must be either facially invalid 

or conclusively refuted by the record. Further, where no 

evidentiary hearing is held below, we must accept the defendant’s 

factual allegations to the extent they are not refuted by the record.” 
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Peede v. State, 748 So. 2d 253, 257 (Fla. 1999) (internal citation 

omitted).

In his first claim, Newcomer alleged counsel was ineffective 

for failing to investigate and depose Feola. He asserted that the 

State’s entire case hinged on Feola’s testimony, and defense 

counsel’s strategy was to hope that the officer would not show up 

at trial. Newcomer alleged that if counsel had deposed or 

interviewed Feola, he would have learned that Newcomer and

Feola had “an undesirable past history.” Specifically, Feola tried 

to recruit Newcomer to be an informant, but Newcomer declined,

thereby angering Feola. Had counsel deposed Feola, he would have 

learned that Feola targeted Newcomer on the date of the incident 

to obtain leverage in order to get Newcomer to be an informant. 

“[W]hen failure to depose is alleged as part of an ineffective 

assistance of counsel claim, the appellant must specifically set 

forth the harm from the alleged omission, identifying ‘a specific 

evidentiary matter to which the failure to depose witnesses would 

relate.’” Ferrell v. State, 29 So. 3d 959, 969 (Fla. 2010) (quoting 

Davis v. State, 928 So. 2d 1089, 1117 (Fla. 2005)).

“[A]lthough defense counsel is entitled to broad deference 

regarding trial strategy, when the court is confronted with a claim 

of ineffective assistance, a finding that some action or inaction by 

defense counsel was tactical is generally inappropriate without an 

evidentiary hearing.” Hamilton v. State, 860 So. 2d 1028, 1029 

(Fla. 5th DCA 2003). An exception to this general rule occurs when 

the reasonableness of counsel’s strategy is obvious from the record. 

See Pomposello v. State, 940 So. 2d 500, 502 (Fla. 5th DCA 2006); 

Jackson v. State, 975 So. 2d 485, 486 (Fla. 2d DCA 2007).

Newcomer identified a specific evidentiary matter that the

deposition of Feola would reveal. He asserted that the deposition 

would reveal his and Feola’s “sour relationship.” However, the 

attached records show counsel’s efforts to avoid revealing that 

relationship so as not to prejudice the defense. Also, the record 

reflects that even without deposing Feola, counsel was fully aware 

of the nature of the officer’s testimony, because he had the benefit 

of the arrest affidavit and he effectively and extensively crossexamined the officer on the details of the alleged offenses. While 

counsel could have deposed Feola to learn the nature of Feola and 
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Newcomer’s prior relationship, it is clear from the record that 

counsel did not want to disclose that relationship so as not to 

reveal, or suggest, that Newcomer had a prior criminal record or 

committed prior bad acts. As counsel’s performance was not 

deficient in this regard, we affirm the denial of Newcomer’s first

claim.

Also in claim one, Newcomer alleged that counsel should have 

obtained the dash-cam or body-cam videos, as well as intersection 

and business camera footage, from the incident. He asserted that 

contrary to Feola’s testimony, there were cameras at the 

intersection and all Hernando County Sheriff’s patrol vehicles had 

cameras after 2003 that automatically began recording when 

lights and sirens were activated. He alleged footage would show he 

did not accelerate or flee from the officer.

The trial court found Newcomer had no evidence to show all 

Hernando County vehicles had cameras after 2003, and that his 

claim was speculative. Although the trial court characterized the 

claim as such, Newcomer affirmatively alleged there were cameras 

in the patrol cars and at the intersections. His allegations are 

accepted as true unless conclusively refuted by the record. There 

is nothing in the record to refute Newcomer’s claim that there were 

traffic cameras, and had counsel investigated those cameras, he 

would have obtained footage contradicting Feola’s testimony about 

the incident. See Happel v. State, 330 So. 3d 122, 123 (Fla. 2d DCA 

2021) (“While some of Happel’s statements were conclusory, he 

specifically alleged that the videos existed and would have shown 

that he did not shoot at the officer. The court was required to 

accept these assertions as true to the extent that they are not 

refuted by the record.”). Accordingly, we reverse and remand this 

portion of claim one for attachment of the records conclusively 

refuting the claim or for the court to hold an evidentiary hearing.

In claim two, Newcomer alleged that counsel was ineffective 

for failing to call witness Michelle Roberts, the female passenger 

in his car during the incident. He alleged that prior to trial he told 

counsel about the female passenger, “Michelle,” but Newcomer 

could not remember her last name, address or phone number. A 

year later, prior to trial, Michelle contacted Newcomer in the 

county jail and provided her address. She also reached out to the 

public defender’s office, but they could not supply her with 
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attorney information. Newcomer alleged counsel should have 

investigated Michelle, because Michelle would have testified that 

Newcomer did not accelerate at a high rate of speed, and that he 

did not weave in and out of traffic.

In order to allege failure to investigate or call witnesses, a 

defendant must allege “the identity of the witnesses, their 

testimony, that the witnesses were available to testify at the trial, 

and how this lack of testimony prejudiced the outcome of the 

verdict.” Rollins v. State, 997 So. 2d 1288, 1288–89 (Fla. 4th DCA 

2009); Bennett v. State, 838 So. 2d 633, 634 (Fla. 1st DCA 2003). 

Counsel cannot be ineffective for failing to call witnesses he knew 

nothing about. See Prieto v. State, 708 So. 2d 647 (Fla. 2d DCA 

1998).

The trial court summarily denied this claim, finding that 

Newcomer failed to allege that he provided Michelle’s contact 

information to counsel prior to trial. The court should have 

provided Newcomer an opportunity to amend this specific claim. 

Accordingly, we reverse and remand for the court to do so.

In his third claim, Newcomer alleged counsel was ineffective 

for advising him not to testify. Newcomer alleged that counsel’s

advice was that the benefit of Newcomer’s testimony did not 

outweigh the damage the State could do with his prior record. He 

asserted he would have testified about Feola’s prior request for 

Newcomer to be an informant, Newcomer’s rejection of that 

request, their sour relationship, and that Feola was looking for 

leverage that day. He also alleged he would have testified that he 

was not fleeing.

“The first step in determining whether there was ineffective 

assistance of counsel where defendant claims he would have 

testified is to determine whether the defendant voluntarily agreed 

with counsel not to take the stand.” Simon v. State, 47 So. 3d 883, 

885 (Fla. 3d DCA 2010). Once that is established, then the trial

court must determine “whether counsel’s advice to defendant ‘even 

if voluntarily followed, was nevertheless deficient because no 

reasonable attorney would have discouraged [defendant] from 

testifying.’” Id. (quoting Lott v. State, 931 So. 2d 807, 819 (Fla. 

2006)). “Counsel may be ineffective in advising defendant not to 

testify at trial, where the defendant’s testimony would have been 
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the only evidence establishing a legally-recognized defense to the 

charges.” Tafolla v. State, 162 So. 3d 1073, 1073 (Fla. 4th DCA 

2015).

Newcomer fails to demonstrate that counsel’s advice, even if 

voluntarily followed, was nevertheless deficient because no 

reasonable attorney would have discouraged Newcomer from 

testifying. Had Newcomer testified about his prior relationship 

with Feola, which involved being recruited to be a confidential 

informant, it would not have provided a defense to the charges. At 

best it would undermine the credibility of the officer, but it would 

also affect the credibility of Newcomer, as the jury would be aware 

he had a criminal history. Counsel’s performance was not deficient 

for advising Newcomer not to testify because the potential 

prejudice far outweighed the benefit. Accordingly, we affirm the 

trial court’s order denying this portion of claim three.

Finally, also in claim three, Newcomer alleged that once 

counsel knew Officer Feola was going to testify, counsel should 

have advised him to take a 3 or 4.25 year plea offer, which he 

asserted was still on the table. He alleged the court would have 

accepted the plea and the plea was less than the sentence received. 

This claim is not refuted by the record. Newcomer alleged 

counsel’s strategy was to “do nothing,” because counsel suspected 

the officer would not appear for trial and the State would not be 

able to prove its case. If this is true, there is nothing in the record 

that explains why counsel did not advise Newcomer to accept the 

plea when counsel learned the officer was present to testify at trial. 

There is nothing attached that shows the plea offer had been 

rescinded or was no longer on the table. Accordingly, as to this 

portion of claim three, we reverse and remand for attachments of 

the records or for an evidentiary hearing. 

For these reasons, we reverse the summary denial of 

Newcomer’s rule 3.850 motion and remand for further proceedings 

consistent with this opinion.

REVERSED and REMANDED.

EDWARDS, C.J., and JAY, J., concur.
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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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