Supreme Court of Florida

____________

No. SC19-1709

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JEFFREY LEE ATWATER,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

August 13, 2020

PER CURIAM.

Jeffrey Lee Atwater appeals an order of the circuit court denying his fifth 

successive postconviction motion filed pursuant to Florida Rule of Criminal 

Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

BACKGROUND

Atwater was convicted of first-degree murder and robbery and was 

sentenced to death. The record reflects that during closing arguments, defense

counsel conceded that the State’s evidence demonstrated that Atwater committed 

second-degree murder, though counsel argued there was insufficient evidence of 

first-degree murder.
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In his fifth successive postconviction motion, Atwater argued that he was 

not informed of counsel’s plan to concede guilt, and if he had been informed, he 

would not have agreed. Invoking McCoy v. Louisiana, 138 S. Ct. 1500 (2018), 

Atwater asserted that counsel’s concession of guilt without his consent was a 

structural error that entitled him to a new trial. McCoy held that it violates the 

Sixth Amendment when an attorney concedes his client’s guilt over the client’s 

“insistent objections.” Id. at 1512. Atwater requested an evidentiary hearing. He 

also filed a motion to stay the case management conference until his counsel 

returned from maternity leave. The trial court denied the motion to stay and 

dismissed the successive postconviction motion, for two reasons.

First, the court found that the postconviction motion was untimely. Rule 

3.851(d)(1) requires postconviction motions in capital cases to be filed within one 

year of the judgment and sentence becoming final, subject to limited exceptions. 

Atwater sought to avail himself of rule 3.851(d)(2)(B), which creates an exception 

for motions that allege “the fundamental constitutional right asserted was not 

established within the period provided for in subdivision (d)(1) and has been held

to apply retroactively.” The trial judge found that under the plain language of the 

rule, a defendant cannot file a motion under this exception unless the constitutional 

right asserted “has been held” to apply retroactively prior to the motion being filed. 
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Because no court has held that McCoy applies retroactively, the trial court found 

that this exception to the one-year time limitation did not apply.

Second, even if the postconviction motion had been timely, the court found 

it was without merit. Taking as true the factual allegations in Atwater’s motion, 

the court found that McCoy does not govern this case because Atwater did not 

allege that counsel conceded his guilt over Atwater’s objections. Instead, 

Atwater’s motion states that he never discussed with his attorneys the possibility of 

conceding guilt.

The trial court found this case to be controlled by Florida v. Nixon, 543 U.S. 

175, 178, 192 (2004), in which the Supreme Court held that where the defendant 

“neither consents nor objects” to a proposed trial strategy of conceding guilt, there 

is no “blanket rule demanding the defendant’s explicit consent.” Therefore, the 

trial court found Atwater’s claim under McCoy was without merit and dismissed 

the postconviction motion.

ANALYSIS

On appeal, Atwater challenges both the dismissal of his postconviction 

motion and the trial court’s failure to conduct a case management conference or 

evidentiary hearing prior to ruling on the motion. “We review a circuit court’s 

summary rejection of a postconviction claim de novo, ‘accepting the movant’s 

factual allegations as true to the extent they are not refuted by the record, and 
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affirming the ruling if the record conclusively shows that the movant is entitled to 

no relief.’ ” Dailey v. State, 279 So. 3d 1208, 1215 (Fla. 2019) (quoting Pardo v. 

State, 108 So. 3d 558, 561 (Fla. 2012)).

We agree with the trial court that, accepting as true the factual allegations in 

Atwater’s motion, he has failed to show entitlement to relief under McCoy. 

Contrary to Atwater’s claim, the Supreme Court in McCoy did not hold that 

counsel is required to obtain the express consent of a defendant prior to conceding 

guilt. Instead, the Court held that if a defendant “expressly asserts that the 

objective of ‘his defence’ is to maintain innocence of the charged criminal acts, his 

lawyer must abide by that objective and may not override it by conceding guilt.” 

McCoy, 138 S. Ct. at 1509 (quoting U.S. Const. amend. VI). Because McCoy 

“vociferously insisted that he did not engage in the charged acts and adamantly 

objected to any admission of guilt,” the Supreme Court found that counsel’s 

concession of guilt violated McCoy’s “[a]utonomy to decide that the objective of 

the defense is to assert innocence.” Id. at 1505, 1508.

Unlike the defendant in McCoy, Atwater does not allege that he expressed to 

counsel that his objective was to maintain his innocence or that he expressly 

objected to any admission of guilt. Instead, Atwater states that he did not discuss 

the possibility of conceding guilt with counsel. The crux of Atwater’s argument is

to fault counsel for failing to discuss with Atwater the potential trial strategy of 
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conceding guilt. But counsel’s duty to discuss trial strategy with the defendant was 

established long before the Supreme Court’s decision in McCoy. In its 2004 

decision in Nixon, for example, the Supreme Court noted that “[a]n attorney 

undoubtedly has a duty to consult with the client regarding ‘important decisions,’ 

including questions of overarching defense strategy.” Nixon, 543 U.S. at 187 

(quoting Strickland v. Washington, 466 U.S. 668, 688 (1984) (“From counsel’s 

function as assistant to the defendant derive[s] the . . . dut[y] to consult with the 

defendant on important decisions and to keep the defendant informed of important 

developments in the course of the prosecution.”)). At its heart, Atwater’s claim is 

not a McCoy claim; Atwater has not alleged that counsel conceded guilt over 

Atwater’s objection. Therefore, the trial court was right to conclude that Atwater’s 

allegations are facially insufficient to warrant relief under McCoy.

Because Atwater has not stated a facially sufficient claim, the trial court’s 

failure to hold a case management hearing as provided for by rule 3.851(f)(5)(B) 

was harmless error. Rivera v. State, 260 So. 3d 920, 926 (Fla. 2018) (citing 

Groover v. State, 703 So. 2d 1035 (Fla. 1997)).

In light of this disposition, we find it unnecessary to address the trial court’s 

ruling that a motion filed pursuant to rule 3.851(d)(2)(B) is untimely unless the 

fundamental constitutional right asserted has already been held to apply 

retroactively.
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CONCLUSION

Based on the foregoing, we affirm the dismissal of the postconviction 

motion.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, and 

COURIEL, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, 

IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Pinellas County,

Joseph Anthony Bulone, Judge - Case No. 521989CF013299XXXXNO

Eric Pinkard, Capital Collateral Regional Counsel, Julie A. Morley, James L. 

Driscoll, Jr., and Tracy M. Henry, Assistant Capital Collateral Regional Counsel, 

Middle Region, Temple Terrace, Florida,

for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Marilyn Muir Beccue, 

Senior Assistant Attorney General, Tampa, Florida,

for Appellee