COREY L. BROWN, JR.

v.

STATE OF FLORIDA

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Sarasota County; Donna Padar, Judge. KHOUZAM, Judge. Corey L. Brown, Jr., appeals the order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the attachments to the order do not conclusively refute Ground I of the motion, in which Mr. Brown asserted that his trial counsel was ineffective for failing to object to the introduction of a photograph the court had previously ruled was inadmissibly prejudicial, we reverse the denial of that claim for reconsideration and, if necessary, an evidentiary hearing.

We affirm without comment the denial of Ground II. The postconviction court's summary denial of a claim of ineffective assistance of counsel is reviewed de novo. Romaine v. State, 283 So. 3d 425, 427 (Fla. 2d DCA 2019).

The summary denial will be affirmed if the claim is facially insufficient or "conclusively refuted by the record, the relevant portions of which must be attached to the postconviction court's order." Id. at 427-28 (quoting Bolduc v. State, 279 So. 3d 768, 769 (Fla. 2d DCA 2019)).

The merits of the claim are governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984), under which the defendant must show both deficient performance and prejudice. In 2015, a jury found Mr. Brown guilty of second-degree murder and made a specific finding that he actually possessed and discharged a firearm causing great bodily harm. In his direct appeal, this court affirmed Mr. Brown's conviction without comment, remanding only for the trial court to make written findings regarding his entitlement to a sentence review. Brown v. State, 235 So. 3d 971, 972 (Fla. 2d DCA 2017).

In Ground I of Mr. Brown's postconviction motion, he contended that his trial counsel was ineffective for failing to prevent the introduction of a prejudicial photograph at trial. Specifically, he asserted that even though the trial court had previously ruled the photograph was impermissibly prejudicial unless it was cropped to exclude certain elements, his counsel failed to object on that basis when the State nonetheless twice published the uncropped, excluded photograph to the jury. The postconviction court denied this claim on the basis that Mr. Brown had "raised the publication of the improperly cropped photo to the jury as Issue Two of his initial appellate brief" in his direct appeal. In support, the court attached to the order Mr. Brown's Issue Two argument from his appellate briefing, in which he contended that the "trial court abused its discretion by permitting the State to introduce a still photograph depicting Mr. Brown aiming a firearm at a person" on the basis of undue prejudice. The postconviction court specifically found that because the "claim was denied on the merits on direct appeal, it is procedurally barred from this postconviction proceeding." This was error. As the Florida Supreme Court has explained: Whereas the main question on direct appeal is whether the trial court erred, the main question in a Strickland claim is whether trial counsel was ineffective. Both claims may arise from the same underlying facts, but the claims themselves are distinct and—of necessity—have different remedies: A claim of trial court error generally can be raised on direct appeal but not in a rule 3.850 motion, and a claim of ineffectiveness generally can be raised in a rule 3.850 motion but not on direct appeal. A defendant thus has little choice: As a rule, he or she can only raise an ineffectiveness claim via a rule 3.850 motion, even if the same underlying facts also supported, or could have supported, a claim of error on direct appeal. Bruno v. State, 807 So. 2d 55, 63 (Fla. 2001) (footnotes omitted).

Here, the attachment to the order shows that Mr. Brown did indeed challenge in his direct appeal the introduction of the uncropped photograph.

However, that challenge was directed at the trial court, not counsel, and was made on the express basis that the photograph was unduly prejudicial as the court had already ruled. Nothing indicates that Mr. Brown also contended in the direct appeal that this error involved ineffective assistance of counsel; to the contrary, ineffective assistance is not mentioned at all.

Thus, the postconviction court's conclusion that Mr. Brown's ineffective assistance of counsel claim "was denied on the merits on direct appeal" is not supported by the record. Further, even though Mr. Brown's related claim of trial court error was affirmed on appeal, we did so without comment. As the Florida Supreme Court has also explained, although this claim was raised on direct appeal, it is not clear from the opinion itself how this Court disposed of the claim: it may have been barred due to a failure to preserve or it may have been denied on the merits. If the claim was denied on the merits, then the claim would be barred in a subsequent postconviction motion. If, however, the claim was denied due to counsel's failure to preserve the issue for appellate review, then a postconviction motion would be the proper vehicle to raise such a claim. Id. at 66.

Thus, "unless a direct appeal is affirmed with a written opinion that expressly addresses the issue of ineffective assistance of counsel, an affirmance on direct appeal should rarely, if ever, be treated as a procedural bar to a claim for ineffective assistance of counsel on a postconviction motion." Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d DCA 2002) (first citing Bruno, 807 So. 2d at 64- 65; and then citing Kampff v. State, 443 So. 2d 401, 402 (Fla. 4th DCA 1984)).

Particularly where, as here, the claim asserts trial counsel's failure to object, the postconviction court should not have summarily denied it merely because an issue alleging a related error by the trial court was affirmed without comment on direct appeal. See Bruno, 807 So. 2d at 67 ("[T]he trial court incorrectly determined that the part of the claim dealing with justifiable homicide was barred, as this was one of the laundry list [of] claims rejected by this Court without discussion on direct appeal. The issue is therefore properly raised in this postconviction motion.").

We accordingly reverse the postconviction court's denial of Ground I and "remand for the postconviction court to reconsider this claim and to conduct an evidentiary hearing if necessary." Romaine, 283 So. 3d at 429 (quoting Martin v. State, 205 So. 3d 811, 813 (Fla. 2d DCA 2016)).

Affirmed in part, reversed in part, and remanded. LaROSE and STARGEL, JJ., Concur. __________________________ Opinion subject to revision prior to official publication.