FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-2911

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STATE OF FLORIDA,

Appellant,

v.

ANTHONY SMITH,

Appellee.

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On appeal from the Circuit Court for Leon County.

Martin A. Fitzpatrick, Judge.

April 11, 2019

KETCHEL, TERRANCE R., ASSOCIATE JUDGE.

The State appeals the postconviction court’s grant of Smith’s 

3.850 motion. We reverse.

Facts

Smith was charged and convicted in the armed robbery of 

two victims while the victims waited in a Taco Bell drive-thru. 

During trial, Smith testified on his own behalf. After other 

questions, defense counsel asked Smith “Where were you that 

night, if you know?” The State objected. At sidebar, the State 

argued that defense counsel had not provided the proper notice of 

alibi. Defense counsel explained she expected Smith’s answer to 

be he really did not know, but he would have normally been with 

his grandmother; she stated that she really did not expect Smith 
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to offer an alibi. Defense counsel then offered to withdraw the 

question and to move to something else. She explained she was 

not exactly sure what answer Smith would give and “he might go 

on . . . he has a tendency to talk a lot.” 

The jury convicted Smith of armed robbery and simple 

robbery. This Court per curiam affirmed his direct appeal, and 

he moved for post-conviction relief under rule 3.850. Relevant 

here, Smith argued that trial counsel was ineffective for 

withdrawing her alibi question because there was no requirement 

a defendant file a notice of intent if it is the defendant testifying 

to an alibi; and he also argued defense counsel was ineffective for

failing to investigate and call his grandmother as a witness to 

support the alibi.

Defense counsel testified at the evidentiary hearing that 

Smith had told her about his grandmother, and that she had 

investigated but concluded that the alibi was not a good alibi. As 

to withdrawing her question, counsel explained her intent was to 

sneak the alibi idea in without focusing on it; she felt the alibi, in 

general, was weak. When the State objected, she felt it did not 

matter because she was worried Smith would continue to talk 

and say something that would hurt his case.

The postconviction court granted Smith’s motion as to the 

claim defense counsel was ineffective for withdrawing the 

question after she asked it. The State now appeals.

Ineffective Assistance of Counsel

Ineffective assistance of counsel requires both deficiency and 

prejudice. Bettey v. State, 244 So. 3d 364, 366 (Fla. 1st DCA 

2018) (citing Strickland v. Washington, 466 U.S. 668, 690, 694 

(1984)); see Hurst v. State, 18 So. 3d 975, 996 (Fla. 2009) (noting 

that failure of either prong precludes relief). We review de novo 

the postconviction court’s legal conclusions regarding whether the 

facts it finds show both deficiency and prejudice. State v. 

Dickson, 89 So. 3d 277, 279 (Fla. 1st DCA 2012).
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Deficiency

Deficiency requires that counsel was not really functioning 

as “counsel” guaranteed by the Sixth Amendment; i.e., 

performance “outside the wide range of reasonable professional 

assistance.” Betts v. State, 792 So. 2d 589, 590 (Fla. 1st DCA 

2001). This Court is “highly deferential” to counsel’s 

performance; it will not second-guess tactical or strategic 

decisions. Pietri v. State, 885 So. 2d 245, 252 (Fla. 2004); see

State v. Barnes, 24 So. 3d 1244, 1249 (Fla. 1st DCA 2009). The 

standard looks for “reasonably effective assistance.” Strickland, 

466 U.S. at 687.

The deficiency question here is whether the improper 

objection by the State* and the resulting sidebar discussion with 

the court that led defense counsel not to pursue the alibi question 

was “reasonably effective assistance” by defense counsel. See 

Strickland, 466 U.S. at 687. Here, defense counsel’s consistent 

statements (both during the trial sidebar and the post-conviction 

hearing) revealed she withdrew her question due to strategy: she

stated that she did not want to ask Smith an open-ended 

question because Smith had a tendency to talk, and she feared he 

would say something that would hurt his case, even if 

unintentionally. Such strategic reasoning is not “outside the 

wide range of reasonable professional assistance.”

In addition, there is no support for Smith’s contention that 

defense counsel failed to pursue the alibi question because she

lacked knowledge of the rule permitting her to ask the question. 

In fact, counsel testified at the evidentiary hearing to her 

reasons: she did not want to ask an open-ended question and

feared what Smith might say in response; thus, she was fine—

strategically—with withdrawing the question.

Accordingly, we find the trial court erred in concluding 

defense counsel’s performance was deficient. 

 * The State’s objection was clearly improper. Fla. R. Crim. P. 

3.200 (stating a court cannot exclude a defendant’s own alibi 

testimony for failure to file and serve proper notice of an alibi 

defense).
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Prejudice

Prejudice requires “a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding 

would have been different”—“a probability sufficient to 

undermine confidence in the outcome.” Hunter v. State, 817 So. 

2d 786, 794 (Fla. 2002). Counsel’s error(s) must have had more 

than “some conceivable effect on the outcome of the proceeding.” 

Strickland, 466 U.S. at 693. 

Even if counsel’s performance was deficient, there is no 

“reasonable probability” the results of the trial would have been 

different if Smith had been allowed to answer the question 

“Where were you that night?” See Hunter, 817 So. 2d at 794 

(defining prejudice). Smith’s self-serving statement that he was 

at his grandmother’s would not likely have led to a different 

result, particularly considering that the grandmother would not 

have been called as a witness to corroborate. It is unlikely the 

jury would have believed Smith’s testimony concerning his 

whereabouts when it rejected his testimony that he did not 

commit the crime, when other evidence, including DNA evidence, 

indicated otherwise. Furthermore, defense counsel explained 

Smith’s testimony was expected to be vague anyway—that he did 

not recall the night specifically, but he was generally always at 

his grandmother’s. This is in addition to the potential for other 

harmful testimony that Smith may have said if he was allowed to 

answer an open-ended question, which was defense counsel’s 

stated strategic concern.

Thus, Smith did not undermine confidence in the outcome, 

and the postconviction court erred in its legal conclusion Smith 

showed prejudice.

Conclusion

Smith did not show defense counsel’s performance was 

deficient in that defense counsel made a strategic decision to not 

permit Smith to answer an open-ended question. Even if it was 

deficient, however, Smith did not show that this error 

undermined confidence in the outcome or created a reasonable 

probability the result of the trial would have been different. 
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Accordingly, for each of these reasons the trial court erred in 

granting Appellant’s 3.850 motion. The order granting 

Appellant’s 3.850 motion is REVERSED.

B.L. THOMAS, C.J., and WINOKUR, 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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Eddie D. Evans, Assistant State Attorney, Tallahassee; Ashley 

Moody, Attorney General, and Amanda D. Stokes, Assistant 

Attorney General, Tallahassee, for Appellant.

No appearance for Appellee.