DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

CHAZ EZEKIEL BYNUM,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D23-1144

January 12, 2024

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for 

Pinellas County; Philippe Matthey, Judge.

PER CURIAM.

Chaz Bynum appeals the order summarily denying his amended 

motion for postconviction relief, filed pursuant to Florida Rule of 

Criminal Procedure 3.850, which raises four grounds for relief. We 

affirm the denial of grounds two, three, and four without further 

comment. Because ground one is facially sufficient and not refuted by 

the record, we reverse and remand for further proceedings. 

The State charged Bynum with one count of second-degree murder 

for a shooting that occurred in 2017. A jury convicted him of the lesserincluded offense of manslaughter, and the trial court sentenced him to 

twenty-five years' imprisonment. We affirmed Bynum's judgment and 

sentence on direct appeal. Bynum v. State, 308 So. 3d 588 (Fla. 2d DCA 
2

2020) (table decision). He timely filed the instant motion for 

postconviction relief, which the postconviction court summarily denied. 

"When reviewing the summary denial of a motion for postconviction 

relief, this court applies de novo review and 'must accept the movant's 

factual allegations as true to the extent that they are not refuted by the 

record.' " Martin v. State, 205 So. 3d 811, 812 (Fla. 2d DCA 2016) 

(quoting Jennings v. State, 123 So. 3d 1101, 1121 (Fla. 2013)). "[A] 

defendant is entitled to an evidentiary hearing on a postconviction relief 

motion unless (1) the motion, files, and records in the case conclusively 

show that the prisoner is entitled to no relief, or (2) the motion or a 

particular claim is legally insufficient." Freeman v. State, 761 So. 2d 

1055, 1061 (Fla. 2000); see also Fla. R. Crim. P. 3.850(f). To plead a 

facially sufficient claim for ineffective assistance of counsel, a defendant 

must plead sufficient facts to establish that his counsel's performance 

was deficient and that he was prejudiced by such deficiency. See Martin, 

205 So. 3d at 812 (citing Strickland v. Washington, 466 U.S. 668, 694 

(1984)). 

In ground one of his motion, Bynum alleges that his counsel 

erroneously advised him not to testify at trial. He asserts that but for 

counsel's unreasonable advice, he would have testified that he was 

present in the car at the time of the shooting but was not the shooter. 

He alleges that his defense at trial was that he is innocent, but the jury 

never heard him deny the charge. The postconviction court summarily 

denied the claim, finding that Bynum had voluntarily agreed not to 

testify and that his allegation that he was present for the murder but was 

not the person who shot the victim was "conclusory." The court also 

found that the record conclusively refuted Bynum's allegation of 

prejudice in light of the inculpatory evidence of his guilt. 
3

"When a defendant asserts that his counsel was ineffective for 

interfering with his right to testify, there are two separate questions for 

the postconviction court to consider. The first is whether the defendant 

voluntarily agreed with counsel not to testify in his own defense." 

Roberts v. State, 307 So. 3d 808, 811 (Fla. 2d DCA 2018) (citing Hayes v. 

State, 79 So. 3d 230, 231 (Fla. 2d DCA 2012)). Bynum concedes that he 

voluntarily agreed not to testify.

However, even if the defendant voluntarily agreed not to testify, "the 

postconviction court must also consider whether counsel's advice to the 

defendant was deficient 'because no reasonable attorney would have 

discouraged' the defendant from testifying." Id. (quoting Lott v. State, 

931 So. 2d 807, 819 (Fla. 2006)). 

Here, the limited record before us demonstrates that the evidence 

against Bynum comprised his fingerprints on the backdoor handle of the 

car, his cell phone located in the backseat of the car, and two 

eyewitnesses who testified that they saw Bynum shoot the victim. 

Bynum's proposed testimony would have explained the presence of his 

fingerprints and his cell phone and rebutted the eyewitnesses' testimony. 

As such, the record does not refute Bynum's allegation that counsel's 

advice not to testify was unreasonable. See id. (holding that the record 

did not refute the defendant's allegation that counsel's advice was 

unreasonable because the jury may have "credited" the defendant's 

testimony favorably and the "testimony could have made a difference");

cf. Coley v. State, 74 So. 3d 184, 185 (Fla. 2d DCA 2011) (acknowledging 

that when a witness' proposed testimony conflicts with that of other 

testimony adduced at trial, "such conflict is necessarily an evidentiary 

matter that must be weighed after a hearing and is not proper grounds 

for denial at the summary stage of the proceeding").
4

Similarly, we are unable to determine that the record refutes 

Bynum's allegation of prejudice. If Bynum had testified, the jury may 

have found him more credible than the witnesses who implicated him in 

the shooting.1 Accordingly, we cannot say that the record refutes 

Bynum's claim that, if he had testified, there is a reasonable probability 

that the outcome of the proceeding would have been different. See 

Roberts, 307 So. 3d at 812 ("The facially sufficient allegations of the 

motion depict a case that hinged on the jury believing the victim and the 

Williams rule witness, whose testimony could have been undermined 

with credible testimony from Mr. Roberts. This demonstrates a 

nonspeculative possibility—depending on the real facts—that Mr. Roberts 

was prejudiced by deciding not to testify, and the record attachments to 

the trial court's order do not show otherwise."); see also Kelly v. State, 

198 So. 3d 1077, 1079 (Fla. 5th DCA 2016) ("The lower court did not 

explain how it could accurately predict what impact admissible, but 

unpresented, evidence might have on the jury's decision."). Therefore, we 

reverse and remand for the postconviction court to either attach records 

that conclusively refute Bynum's claim in ground one or to hold an 

evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

VILLANTI, LaROSE, and ROTHSTEIN-YOUAKIM, JJ., Concur.

Opinion subject to revision prior to official publication.

1 The record establishes that one of those witnesses was impeached 

with her initial inability to identify Bynum in a police photo pack.