DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

STATE OF FLORIDA,

Appellant/Cross-Appellee,

v.

TYREE JENKINS,

Appellee/Cross-Appellant.

No. 2D2022-3623

June 12, 2024

Appeal from the Circuit Court for Hillsborough County; Barbara Twine 

Thomas, Judge.

Ashley Moody, Attorney General, Tallahassee, and David Campbell, 

Assistant Attorney General, Tampa, for Appellant/Cross-Appellee.

Howard L. Dimmig, II, Public Defender, and Deana K. Marshall, Special

Assistant Public Defender, Bartow, for Appellee/Cross-Appellant.

BLACK, Judge.

The State appeals and Tyree Jenkins cross-appeals from an order 

granting in part and denying in part postconviction relief.1 We reverse 

1 The State timely filed a notice of appeal from the postconviction 

court's order granting in part Jenkins' motion filed pursuant to Florida 

Rule of Criminal Procedure 3.850. See § 924.066(2), Fla. Stat. (2022) 
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the order insofar as it granted Jenkins relief and vacated Jenkins' 

convictions and sentences for first-degree murder and armed robbery. 

We affirm the order without comment in all other respects.

In 2010, Jenkins was found guilty following a jury trial of firstdegree murder with a firearm and armed robbery. He was sentenced to 

life in prison on each count with a twenty-five-year minimum mandatory 

term. He then pleaded guilty to felon in possession of a firearm. 

Jenkins' convictions and sentences were affirmed on appeal. Jenkins v. 

State, 90 So. 3d 286 (Fla. 2d DCA 2012) (table decision).

Jenkins timely filed a motion for postconviction relief pursuant to 

Florida Rule of Criminal Procedure 3.850, which he was permitted to 

amend after several extensions of time. The postconviction court ordered 

an evidentiary hearing on multiple claims and summarily denied others. 

As relevant to the State's appeal, the court granted claim three of the 

amended motion following the evidentiary hearing and entered an order 

vacating Jenkins' murder and armed robbery convictions and sentences 

and setting a status hearing.

In claim three, Jenkins alleged that his trial counsel provided 

ineffective assistance when counsel failed to object and move for a 

mistrial after a witness testified that Jenkins had previously been in 

prison. In his motion, Jenkins provided an excerpt of testimony wherein 

the witness was asked about Jenkins' hairstyles for identification 

purposes and the witness responded: "Dreads before, he had little twists 

before. When he came home from prison he had a short haircut." 

Jenkins also included an excerpt from a sidebar that followed the 

("Either the state or a prisoner in custody may obtain review in the next 

higher state court of a trial court's adverse ruling granting or denying 

collateral relief."); Fla. R. App. P. 9.140(c)(1)(J).
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testimony. Jenkins' trial counsel neither objected to the testimony nor 

moved for mistrial. At the sidebar, one prosecutor noted for the record 

that the witness had been advised with defense counsel present to "steer 

clear" of prison references. Another prosecutor stated that it sounded 

like the witness had said "when I came out of prison." Defense counsel 

stated: "Quite frankly I didn't barely pick it up. I'm sure [the jury] didn't 

either. I'm not that concerned." In his motion, Jenkins argued that had 

counsel moved for a mistrial, it would have been granted because of the 

prejudicial testimony.

At the evidentiary hearing, Jenkins testified that during trial he 

had whispered to counsel that the jury had heard the witness's 

testimony. He also testified that conflicting identification testimony 

made the witness's testimony important and that if his attorney had 

moved for a mistrial, it would have been granted because Jenkins did not 

testify at trial and the jury would not have otherwise known about his 

time in prison. 

Jenkins' trial counsel also testified at the hearing. He testified that 

he had not heard the witness's statement about prison and that the 

witness had not been speaking loudly or clearly. Counsel reiterated what 

the trial transcript reflected: the trial court had not heard the statement 

about prison and one of the prosecutors thought the witness had said 

"when I came out of prison." Counsel further testified that even in 

hindsight he was unlikely to have moved for mistrial had he heard the 

testimony. He believed that the defense had made headway with its 

misidentification defense and in cross-examinations, that the alibi 

witnesses were "intact and ready to go," and that a mistrial would not 

have benefited Jenkins.
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In granting Jenkins' motion on this claim, the postconviction court 

found that counsel's decision not to object and move for a mistrial was 

not reasonable and that counsel's deficiency prejudiced Jenkins because 

a mistrial would have been granted had a motion been made. In 

reaching the latter determination, the court focused on the fact that the 

witness's testimony violated a pretrial ruling on Jenkins' motion in limine 

to preclude evidence of his prior record. 

On review of a postconviction court's order following an evidentiary 

hearing, we apply a mixed standard of review "by giving deference to the 

[postconviction] court's factual findings, provided they are supported by 

competent, substantial evidence, while conducting an independent de 

novo review of its legal conclusions." State v. Miller, 323 So. 3d 842, 845 

(Fla. 5th DCA 2021). "The appellate court defers to the postconviction 

court's findings of fact to the extent they are supported by competent, 

substantial evidence, but independently reviews the court's legal 

conclusions as to the alleged ineffectiveness of the defendant's counsel 

and the resulting prejudice under the standard outlined in Strickland [v. 

Washington, 466 U.S. 668 (1984)]." State v. Ling, 212 So. 3d 530, 532 

(Fla. 1st DCA 2017) (citing Stephens v. State, 748 So. 2d 1028, 1031-34 

(Fla. 1999)). 

When assessing alleged deficiency, a court must determine 

whether the identified acts or omissions were outside the wide 

range of professionally competent assistance. Johnston [v. 

State, 70 So. 3d 472, 477 (Fla. 2011)]. There is a strong 

presumption that counsel's actions were reasonable. Id. 

" '[S]trategic decisions do not constitute ineffective assistance 

of counsel if alternative courses have been considered and 

rejected and counsel's decision was reasonable under the 

norms of professional conduct.' " Id. ([c]itation omitted). 

"[C]ourts should make 'every effort . . . to eliminate the 

distorting effects of hindsight, to reconstruct the 

circumstances of counsel's challenged conduct, and to 
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evaluate the conduct from counsel's perspective at the time.' " 

Pennington v. State, 34 So. 3d 151, 155 (Fla. 1st DCA 2010) 

(quoting Evans v. State, 975 So. 2d 1035, 1043 (Fla. 2007)). 

The defendant " 'must establish that no competent counsel 

would have taken the action that his counsel did take.' " 

Putman v. Head, 268 F.3d 1223, 1243-44 (11th Cir. 2001) 

(citation omitted).

State v. Plummer, 228 So. 3d 661, 666 (Fla. 1st DCA 2017) (second and 

fourth alterations in original). If "a defendant fails to establish one prong 

of the Strickland analysis, it is unnecessary to examine whether the other 

prong has been established." Jefferson v. State, 351 So. 3d 266, 269 

(Fla. 2d DCA 2022). 

Upon review of the postconviction court's order, it is apparent that 

the postconviction court did not evaluate counsel's conduct from 

counsel's perspective at trial. The court stated that "although there is no 

way to know with certainty whether the jurors clearly heard [the witness] 

say 'when [Jenkins] came home from prison,' the [c]ourt must rely on the 

trial transcript, which does reflect that statement," despite the transcript 

also reflecting that defense counsel stated that he was "sure" that the 

jury did not "pick it up." Given that the transcript reflects that the court 

and at least one of the attorneys did not hear the problematic testimony 

and that counsel testified at the postconviction hearing that he believed 

moving for a mistrial would have been a disservice to his client because 

the trial had been going well, Jenkins failed to establish that no 

competent counsel would have proceeded with the case rather than move 

for mistrial. See, e.g., Goforth v. State, 15 So. 3d 786, 789 (Fla. 5th DCA 

2009) ("Certainly, the failure to move for a mistrial may constitute a 

reasonable trial tactic that does not justify a finding of ineffective 

assistance of counsel."). 
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"When a defendant moves for a mistrial based on the improper 

admission of collateral crime evidence, the motion is addressed to the 

sound discretion of the trial court." Williams v. State, 692 So. 2d 1014, 

1015 (Fla. 4th DCA 1997) (citing Salvatore v. State, 366 So. 2d 745, 750

(Fla. 1978)). And while "evidence of prior criminal activity is 

presumptively harmful, an isolated or stray reference to a defendant's 

prior incarceration is considered in context of the trial and does not 

necessarily result in a mistrial." Jackson v. State, 213 So. 3d 754, 775

(Fla. 2017) (citation omitted). In this case, had trial counsel moved for a 

mistrial, it is not apparent that the court would have granted it. The 

witness's statement was "isolated, inadvertent, and not focused upon," 

and "it is clear from the record that the [S]tate did not intentionally elicit 

the information from the witness" and that not everyone heard the 

witness's statement. See Levi v. State, 867 So. 2d 647, 649 (Fla. 5th 

DCA 2004).

We cannot say that trial counsel's decision was unreasonable or 

that no competent trial attorney would have made the decision that 

counsel made here. See State v. Bush, 292 So. 3d 18, 23 (Fla. 5th DCA 

2020). The postconviction court erred in finding that counsel performed 

deficiently. Accordingly, we reverse that part of the order granting 

Jenkins relief.

Because we find no error in the postconviction court's denial of the 

remaining claims as raised on cross-appeal by Jenkins, we remand with 

instructions that his convictions and sentences for first-degree murder 

and armed robbery be reinstated. 

Affirmed in part, reversed in part, and remanded.

ROTHSTEIN-YOUAKIM and ATKINSON, JJ., Concur.
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Opinion subject to revision prior to official publication.