FOURTH DISTRICT

                          STATE OF FLORIDA,


                           BRANDON BISHOP,

                              No. 4D19-3443

                              [July 15, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Thomas Michael Lynch, V, Judge; L.T. Case No.

  Ashley Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellant.

  Martin P. McDonnell of the Law Office of Martin P. McDonnell, Santa
Rosa Beach, for appellee.


   The State appeals a final order granting Brandon Bishop’s (“Defendant”)
Florida Rule of Criminal Procedure 3.850 motion for postconviction relief,
finding counsel was ineffective and granting a new trial. On appeal, the
State argues that the court erred in (1) granting Defendant’s motion for
postconviction relief; and (2) allowing Defendant’s witness to testify as an
expert. Finding merit to the State’s first argument, we reverse. We affirm
the second issue without further comment.

   By way of background, Defendant invited his ex-girlfriend (“the victim”)
to his parents’ house where he attacked her with a sledgehammer, hitting
her several times in the head. Defendant’s mother interrupted the attack
and Defendant fled. Defendant was apprehended soon after. While in
police custody, Defendant made a request for counsel. During trial, there
were multiple references to Defendant’s request for counsel with no
objection from trial counsel.
   Defendant was convicted of attempted first-degree murder and
sentenced to ninety-nine years in prison. This Court affirmed the
conviction and sentence on direct appeal. Bishop v. State, 

100 So. 3d 1192

(Fla. 4th DCA 2012). In the opinion, we summarized the State’s evidence
of premeditation as follows:

      Prior to being apprehended, Bishop sent text messages to
      several friends, explaining what he had just done and that he
      was going to be imprisoned for it.

      Several lay and expert witnesses testified regarding Bishop’s
      mental state, his ability to plan, and whether he had thought
      about killing the victim. Two experts testified that Bishop
      suffered from a psychotic break and would not have been
      “in the driver’s seat of his behavior.” Another two experts
      testified that Bishop had depression, which would not affect
      his ability to plan. The latter two experts explained why a
      psychotic break was not a reasonable diagnosis. Bishop
      would not remember parts of the event; his memory would be
      wiped clean. But, more importantly, they testified as to
      Bishop’s admissions.

      Bishop admitted to one of the State’s testifying experts that he
      had wrestled with the idea of attacking and killing the victim
      for at least two weeks. He purchased a sledgehammer
      because it would be the best weapon as it would not implicate
      any of his loved ones. In a videotaped evaluation, he also
      admitted to having the victim come over to his house a week
      prior to the attack so that he could hit her with the
      sledgehammer; however, his conscience did not allow him to
      attack her at that time.

Id. at 1193.

This evidence, we determined, was sufficient to show that
Defendant “committed the attempted killing according to a preconceived

Id. at 1194.

    Defendant subsequently filed a rule 3.850 motion for postconviction
relief, alleging eleven grounds. The trial court summarily denied the
motion. Defendant appealed, and we remanded for an evidentiary hearing
on three of the grounds:

      (1) counsel was ineffective for failing to move to disqualify the
      trial judge on the ground that he had improper
      communications with the victim’s family; (2) counsel was

      ineffective for failing to have Bishop’s competency evaluated
      at the time of the trial; and (3) counsel was ineffective for
      failing to adequately advise Bishop regarding his right to
      exclude evidence of his invocation of his right to counsel upon
      arrest. These claims are legally sufficient and are not
      conclusively refuted by the record provided.

Bishop v. State, 

219 So. 3d 83

, 84 (Fla. 4th DCA 2017).

   At the evidentiary hearing, trial counsel testified he failed to move to
exclude or suppress Defendant’s request for counsel, and alleged it was
not a strategic decision. Trial counsel believed that this failure prejudiced
the case as evidence that Defendant had the state of mind to request
counsel was inconsistent with the defense of insanity. The postconviction
court found trial counsel was ineffective for failing to move to exclude
Defendant’s invocation of his right to counsel. The written order, in
relevant part, provided:

      The Court has carefully considered what the effect of hearing
      Defendant’s invocation of counsel had on the trial when the
      jury was simultaneously charged with determining whether
      he was legally insane that same day. In considering the
      totality of the evidence, the Court finds that Defendant was
      absolutely prejudiced. His defense at trial, insanity, was
      negated when the jury learned he subsequently had the state
      of mind to ask for legal representation and underscored the
      point that he may have known what he did was wrong at the
      time he committed the offense. The Court finds that a new
      trial is warranted.

   This appeal follows.

   The State argues the court erred in granting postconviction relief
because (1) Defendant failed to establish he was misadvised when he
agreed to trial counsel’s strategy; and (2) the postconviction court
improperly relied upon trial counsel’s representations of mistake and
prejudice. In the alternative, the State argues that even if trial counsel’s
performance was unreasonable under the prevailing professional norms,
there was no prejudice in light of the overwhelming evidence disproving
the defense of insanity. We agree with the State’s argument that there was
overwhelming evidence disproving the defense of insanity, establishing
there was no reasonable probability the result would have been different.

    To establish a claim of ineffective assistance of counsel, a defendant
“must demonstrate: (1) that counsel’s performance was deficient; and
(2) a reasonable probability that the result of the proceeding would have
been different absent the deficient performance.” Routly v. State, 

590 So. 2d

397, 401 (Fla. 1991) (citing Strickland v. Washington, 

466 U.S. 668

(1984)).     Regarding deficient performance, the defendant must
demonstrate that “counsel’s representation fell below an objective
standard of reasonableness . . . under prevailing professional norms.”

Strickland, 466 U.S. at 688

. The prejudice prong “requires the defendant
to show that ‘there is a reasonable probability that, but for counsel’s
professional errors, the result of the proceeding would have been different,’
where ‘[a] reasonable probability is a probability sufficient to undermine
confidence in the outcome.’” Allen v. State, 

261 So. 3d 1255

, 1269
(Fla. 2019) (alternation in original) (quoting 

Strickland, 466 U.S. at 694


   Here, Defendant’s main contention in arguing ineffective assistance of
counsel was that admission of his custodial request for counsel negated
his insanity defense. While trial counsel’s performance, by allowing
evidence of Defendant’s request for counsel to be admitted at trial, may
arguably have been unreasonable under the prevailing professional
norms, we find there was no prejudice. As the State points out in its brief,
there was a substantial amount of evidence at trial that Defendant
pre-planned the attack and intended to kill the victim. Defendant
admitted he bought a sledgehammer, thought about killing the victim
weeks prior to the attack, and attempted the attack on the victim a week

Bishop, 100 So. 3d at 1193

–94. Defendant also sent text messages
to friends and family immediately after the incident explaining what he
had done and that he was going to be imprisoned for it.

Id. Therefore, even

if Defendant’s request for counsel had been suppressed, there is no
reasonable probability that the jury would have believed Defendant
suffered a “psychotic break” when he attacked the victim.

   Accordingly, we conclude there was overwhelming evidence that
Defendant consciously intended to commit murder and was not insane at
the time he attacked the victim. As such, there is no reasonable
probability that, but for trial counsel’s errors, the outcome would have
been different. Defendant therefore failed to establish prejudice.

   Reversed and remanded for reinstatement of Defendant’s conviction and

LEVINE, C.J., and FORST, J., concur.

                            *          *       *

Not final until disposition of timely filed motion for rehearing.


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