FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D18-3531

_____________________________

MICHAEL LLOYD WORRELL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for Duval County.

Steven B. Whittington, Judge.

October 17, 2019

PER CURIAM.

Michael Worrell was convicted on seven counts of sexual 

battery against two young girls. Worrell filed a postconviction 

motion alleging six reasons that his trial counsel was ineffective, 

which the postconviction court summarily denied. On appeal, we 

affirm the summary denial, but write to address Worrell’s claim 

that counsel was ineffective for failing to present the testimony of 

two doctors who would have supported his defense. 

To prevail on an ineffectiveness claim, a defendant must show 

that counsel’s performance was deficient and prejudicial; counsel’s 

errors must have been so serious that the Sixth Amendment’s 

guarantee of counsel was not satisfied and the defendant was 

deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 

687 (1984). If a defendant asserts ineffectiveness due to counsel’s 

failure to call, interview, or investigate witnesses, he must allege 
2

the testimony that could have been elicited from the witness and 

how the failure to elicit this testimony caused prejudice. See 

Nelson v. State, 875 So. 2d 579, 583 (Fla. 2004). If this claim is 

legally sufficient, an evidentiary hearing is required unless it is 

conclusively refuted by the record. See Franqui v. State, 59 So. 3d 

82, 95 (Fla. 2011). 

Worrell claimed that counsel should have called Dr. Neidigh, 

who had conducted a psychosexual evaluation of Worrell and

would have testified that he had no propensity to molest children. 

Worrell also claimed that counsel should have called Dr. Kirk, who 

would have testified that he had treated Worrell, unsuccessfully, 

for erectile dysfunction, thus rendering dubious the victims’ 

allegations. 

“Typically, it will be necessary to hold an evidentiary hearing 

to determine why trial counsel did not call a particular witness.” 

Terrell v. State, 9 So. 3d 1284, 1288-89 (Fla. 4th DCA 2009).

However, summary denial is appropriate when the record shows 

that the defendant knew of potential witnesses and told the trial 

court that he did not wish to call additional witnesses. See McIndoo 

v. State, 98 So. 3d 640, 641 (Fla. 4th DCA 2012) (“Because his 

sworn motion indicates that he was aware of the witness and that 

witness’s testimony prior to trial, the colloquy to the court 

conclusively refutes his claim that his attorney failed to call a 

known witness against the appellant’s wishes. He is bound by his 

answers to the court.”). Similarly, in Terrell, the defendant told the 

trial court that he did not wish to call additional witnesses and had 

not asked counsel to call or locate any before making contrary 

claims in his postconviction motion. 9 So. 3d at 1287. The Fourth 

District found that the claims were properly denied summarily 

because “the defendant assured the court that there were no other 

witnesses he wanted to call in his defense” and is “bound by his 

sworn answers during the colloquy.” Id. at 1289. At trial, the court 

asked Worrell if he wished to call any additional witnesses and 

Worrell named two—neither being Drs. Neidigh or Kirk—but 

stated that they were unfortunately unavailable. On appeal, he 

“admits that during trial . . . he had neglected to recollect that Drs. 

[Neidigh and Kirk] and others should have been called as 

additional witnesses for his defense.” As defendants cannot go 

behind their colloquy statements, we cannot permit them to do so 
3

by asserting that they simply forgot about potential witnesses 

during trial and now, in postconviction proceedings, remember 

them and their potential testimony. 

Even had the record not conclusively refuted Worrell’s claims, 

he would not be entitled to an evidentiary hearing. Dr. Neidigh’s 

potential expert opinion testimony as to Worrell’s propensities or 

characteristics is not admissible. Section 90.405, Florida Statutes, 

governs the admission of character evidence and “does not permit 

evidence of character to be made by opinion.” Wyatt v. State, 578 

So. 2d 811, 813 (Fla. 3d DCA 1991). In Wyatt, the defendant faced 

allegations similar to Worrell and intended to call a clinical 

psychologist “to testify that the defendant does not fit the profile 

of a pedophile,” the trial court excluded the testimony, and the 

Third District held that “the defendant sought to introduce 

evidence of his character through the expert opinion of a 

psychologist, which is not permitted by the statute.” Id. at 812-13. 

Our rules of evidence would not have permitted Dr. Neidigh to 

opine on whether he believes Worrell has the characteristics of a 

child molester. As to Dr. Kirk, who Worrell claims could have 

testified that he suffered from erectile dysfunction, the 

postconviction court found that any potential deficiency cannot be 

found to have prejudiced Worrell. Given that Worrell and his wife 

both testified as to this issue, the two victims did not know each 

other and gave extremely similar accounts of their experiences of

Worrell bringing them to a hotel to have sex, and other evidence 

presented, such as a hotel owner’s testimony that Worrell often 

rented a room in the most private area of the hotel, we agree with 

the postconviction court that there is not a reasonable probability 

that Dr. Kirk’s testimony would have changed the outcome of the 

trial. 

Worrell’s claim that counsel was ineffective for failing to 

present two witnesses is conclusively refuted by the record, and we 

decline to permit defendants to go behind their representations to 

the trial court by asserting a lapse in memory. Even had Worrell’s 

claims not been refuted by the record, summary denial was proper. 

Therefore, we affirm the denial of his postconviction motion. 

AFFIRMED.

WOLF, OSTERHAUS, and WINOKUR, JJ., concur.
4

_____________________________

Not final until disposition of any timely and 

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

9.331.

_____________________________

Michael Lloyd Worrell, pro se, Appellant.

Ashley Moody, Attorney General, and Julian E. Markham,

Assistant Attorney General, Tallahassee, for Appellee.