JOHNS v. STATE (2020)

Michael Johns again appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We previously reversed on claim three, remanding for an evidentiary hearing on whether trial counsel's failure to object to comments the trial judge made at sentencing constituted ineffective assistance. See Johns v. State, 273 So. 3d 214, 214 (Fla. 5th DCA 2019). We directed the trial court to “decide whether Johns has established that his counsel's performance was deficient and if he was prejudiced as a result.” Id. (citing Grosvenor v. State, 874 So. 2d 1176, 1178 (Fla. 2004)). We again reverse because the trial court did not follow this directive. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The trial court based its ruling on trial counsel's subjective perception that the court's comments were not a basis for Johns's sentence. Trial counsel's performance, however, is measured by an objective standard. Sierra v. State, 230 So. 3d 48, 51 (Fla. 2d DCA 2017). This matter is remanded for a de novo evidentiary hearing ¹ before a new judge, who should apply Strickland to determine whether counsel was deficient and if Johns was prejudiced as a result. REVERSED and REMANDED.

FOOTNOTES

1.   If Johns remains indigent for this hearing, the successor postconviction court should appoint him counsel.

PER CURIAM.

ORFINGER and WALLIS JJ., concur. TRAVER, J., concurs in the result.