DERRICK KNOWLES

v.

STATE OF FLORIDA

PER CURIAM.

Derrick Knowles appeals an order summarily denying his postconviction motion filed under Florida Rule of Criminal Procedure 3.850. Knowles asserted three claims of ineffective assistance of counsel and one claim of cumulative error. Finding no error by the postconviction court, we affirm.

Knowles’ postconviction claims follow his 2017 convictions on four offenses. The State charged Knowles as a principal to burglary of a dwelling while armed, grand theft of a firearm (two counts), and grand theft. At trial, eyewitnesses testified that they saw Knowles running from the victim’s home while carrying a bag, a crossbow, and an AR-15 rifle. One of the witnesses also saw Knowles’ co-defendant bolt from the front door of the victim’s home and take off in a car. The co-defendant later picked up Knowles

and drove away at a high rate of speed. The co-defendant crashed the car and escaped on foot. Knowles surrendered to the police.

The jury found Knowles guilty as charged, and the trial court sentenced him. This Court affirmed the convictions and sentences on direct appeal. Knowles v. State, 272 So. 3d 744 (Fla. 1st DCA 2019) (unpublished table decision).

Following his convictions, Knowles moved for postconviction relief, asserting that his trial counsel was ineffective for (1) advising him not to testify, (2) failing to renew an objection, and (3) conceding guilt during closing arguments. Knowles also argued cumulative error. The trial court summarily denied all claims. This timely appeal follows.

To prevail on his claims of ineffective assistance of counsel, Knowles had to show that (1) counsel’s performance was outside the wide range of reasonable professional assistance; and (2) counsel’s deficient performance prejudiced the outcome of the proceedings so that without the conduct, there was a reasonable probability that the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687–88, 690–92 (1984); Spencer v. State, 842 So. 2d 52, 61 (Fla. 2003). If he failed to make the requisite showing on either prong, Knowles would not be entitled to relief. Rizkkhalil v. State, 316 So. 3d 802, 804 (Fla. 1st DCA 2021). Knowles argues that the trial court reversibly erred in denying his four postconviction claims.

First, Knowles argued that his counsel was ineffective for advising him against testifying. Knowles asserted that his reasonable hypothesis of innocence would have overcome the State’s wholly circumstantial case on the principal to burglary charge. This claim fails because the State’s case was not wholly circumstantial. Two eyewitnesses saw Knowles near the garage door of the victim’s home carrying a bag, a crossbow, and an AR-15 rifle—all of which belonged to the victim and were kept inside the victim’s home. One of the eyewitnesses took chase, but Knowles dropped the bag and crossbow and ran away with the AR-15 rifle. The testimony of the eyewitnesses provided direct evidence of Knowles’ guilt, and so the wholly circumstantial

evidence standard did not apply.* See Knight v. State, 186 So. 3d 1005, 1010 (Fla. 2016) (holding that the wholly circumstantial evidence standard applies only when all evidence of guilt is circumstantial).

Even so, Knowles’ testimony would not have established his innocence because the State charged Knowles as a principal to burglary, presented evidence that Knowles aided his co-defendant, and the trial court gave the principal instruction to the jury. Indeed, Knowles admitted in his postconviction motion that he told counsel that he picked up the weapons and the bag his co-defendant brought outside the victim’s home after he learned that his co-defendant intended to burglarize the victim’s home. This testimony was an admission that Knowles aided his co-defendant by carrying away the stolen goods. And so, defense counsel was not ineffective for advising Knowles not to testify. Davis v. State, 990 So. 2d 459, 468 (Fla. 2008) (“Counsel will not be deemed ineffective for failing to present evidence that would be more harmful than helpful.”). And the trial court did not err when it denied this postconviction claim.

In his second claim, Knowles argued that his counsel was ineffective for failing to renew an objection to the State’s references to Knowles’ presence in the car fleeing from law enforcement to establish his consciousness of guilt. At trial, defense counsel objected to the State’s line of questioning about the fleeing car. And when the State tried to introduce into evidence a photograph of a marked sheriff’s office vehicle, defense counsel objected again, arguing that the State did not charge Knowles with fleeing or attempting to elude. Instead, it was the co-defendant who drove the car that fled from the scene. The trial court overruled the objection, but offered to review the matter in the future. Defense counsel never renewed the objection.

* After Knowles was convicted, the Florida Supreme Court abandoned the special standard of review for cases involving wholly circumstantial evidence. Bush v. State, 295 So. 3d 179, 200– 01 (Fla. 2020).

But defense counsel did elicit testimony from witnesses to show that it was the co-defendant, not Knowles, who drove the car and fled from law enforcement. Although counsel’s arguments did not persuade the jury as to Knowles’ lack of consciousness of guilt, defense counsel was not ineffective. See Ferguson v. State, 593 So. 2d 508, 511 (Fla. 1992) (“[C]ounsel’s argument does not fall to the level of deficient performance simply because it ultimately failed to persuade the jury.”). And even if counsel had renewed his objection to the references to Knowles’ presence in the fleeing car, Knowles cannot show prejudice. Along with his presence in the fleeing car, Knowles also sought to flee the scene independently on foot. For this reason, Knowles cannot establish a reasonable probability that the outcome of the proceedings would have been different had defense counsel objected again to references to Knowles’ presence in the fleeing car as evidence of consciousness of guilt. And so the trial court did not err when it denied this postconviction claim.

In his third claim, Knowles asserts that his counsel was ineffective for conceding Knowles’ guilt during closing arguments. He contends that counsel told the jury, “You also heard testimony about the second person that left the house.” Knowles contends that this statement by counsel undermined his defense to the burglary charge—he was never observed inside or leaving the victim’s home. But counsel never stated that Knowles was inside the home. Instead, counsel “hotly” contested the State’s assertion that Knowles entered the home. Counsel’s statement was not a concession that Knowles was inside the home. Rather, it was an accurate reflection of the testimony given by two eyewitnesses who saw Knowles flee from the area surrounding the house on foot. Because the record refutes Knowles’ claim that his counsel conceded guilt, the trial court properly denied it.

In his last postconviction claim, Knowles argues that counsel’s deficient performance created cumulative error. This claim fails because there must first be error before there can be cumulative error. Barnhill v. State, 971 So. 2d 106, 118 (Fla. 2007) (“Because all of the allegations of individual legal error are without merit, a cumulative error argument based upon these errors must also fail.”).Because Knowles’ ineffective assistance of counsel claims

lacked merit, his claim of cumulative error also fails. And so, the trial court properly denied this claim.

Because Knowles failed to show that counsel rendered ineffective assistance and failed to show cumulative error, we AFFIRM the trial court’s order denying the postconviction motion.

ROWE, C.J., and B.L. THOMAS and OSTERHAUS, JJ., concur. _____________________________