JASON SCOTT DOWNS

v.

STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

JASON SCOTT DOWNS,

Appellant,

v. Case No. 5D19-947

STATE OF FLORIDA,

Appellee. ________________________________/

Opinion filed January 31, 2020

3.850 Appeal from the Circuit Court for Brevard County, Morgan Laur Reinman, Judge.

Jason Scott Downs, Melbourne, pro se.

Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

In 2001, Jason Scott Downs was convicted of forcing or enticing a child to commit a lewd, lascivious, or indecent act, and committing a lewd, lascivious, or indecent act in the presence of a child.¹ This Court affirmed Downs’s convictions on direct appeal. See Downs v. State, 823 So. 2d 789 (Fla. 5th DCA 2002).

2 Downs was permitted to file a belated motion because his appellate counsel failed to do so in a timely manner, despite her assurances that she would. Downs v. State, 135 So. 3d 521 (Fla. 5th DCA 2014). However, Downs bears some responsibility for the delay. Although he reasonably relied upon the representations of his appellate counsel, had Downs inquired into the status of his motion, he would have learned of counsel’s failure to file such motion much sooner.

3 circumstances.” Id. at 688. To prove prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. We agree with Downs that Ciener’s performance was deficient. In Cole v. State, 700 So. 2d 33 (Fla. 5th DCA 1997), this Court criticized Ciener’s blanket strategy of refusing to present defense witnesses in order to retain the first and last closing argument. Despite our admonishment, Ciener employed that strategy during Downs’s trial four years later. Nevertheless, Downs was acquitted on a third charge, and Ciener successfully argued for a withhold of adjudication on the two remaining counts, as well as a downward departure sentence. The crux of Downs’s postconviction claims concern Ciener’s refusal to present two witnesses, who Downs asserts would have established that the victim’s allegations were untrue. The victim was the only witness to the crime, and the physical evidence was inconsistent with the victim’s testimony; particularly, the absence of DNA, which, according to the victim’s testimony, would have been expected.⁴ At the evidentiary hearing, the two witnesses testified but, due to the passage of time, could not specifically recall the night in question. Consequently, the witnesses failed to provide exculpatory evidence or contradict the victim’s testimony. Downs argues that had Ciener interviewed the two witnesses prior to trial, their lapses in memory would have been avoided. Although his assertion is well-founded,

4 under Strickland, 466 U.S. at 694, Downs bore the burden of establishing a reasonable probability that his trial would have ended differently had the witnesses been called. We recognize that Downs has unequivocally denied the allegations against him, but the difficulty is that as time passed, the witnesses’ memories faded. The trial court found that Downs did not meet the burden of establishing prejudice, and having reviewed the record, we agree.

AFFIRMED.

WALLIS and SASSO, JJ., concur.