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The State of Florida vs. Stanford Ellis
Case Number: 3D17-2478
Judge: Before EMAS, C.J., and SALTER, J., and LEBAN, Senior Judge.
Court: Third District Court of Appeal State of Florida
Plaintiff's Attorney: Ashley Moody, Attorney General, and Marlon J. Weiss and Michael W. Mervine, Assistant Attorneys General
Defendant's Attorney: Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region and Kristen Kawass, Assistant Regional Counsel
The State of Florida appeals an order granting postconviction relief1 to
Stanford Ellis (ďEllisĒ) following an evidentiary hearing. We affirm the order,
finding competent, substantial evidence in the record establishing Ellisís trial
counselís ineffectiveness for failing to file a pretrial motion to dismiss based upon
pre-arrest delay, and upon counselís constitutionally deficient pretrial
The trial courtís closely reasoned 34 page order describes a one-witness case
in which Ellis was convicted of two counts of misdemeanor battery and one count
of false imprisonment, all as lesser-included offenses of aggravated battery on a
pregnant victim, domestic battery by strangulation, and kidnapping. There was no
physical or testimonial evidence presented at trial to corroborate the alleged
victimís version of what occurred.
The alleged criminal incidents occurred May 13, 2011. The alleged victim
made a report to the Miami-Dade Police Department two days later, but Ellis was
not arrested until a year later. The victimís report and later testimony disclosed
numerous material inconsistencies and differing accounts of the alleged criminal
At trial in November 2012, the jury convicted Ellis on all three lesser
included offenses rather than the charged offenses. The conviction and sentence
1 The defendant in the underlying criminal case, Ellis, had served his sentences and was at liberty when the order was entered.
were affirmed in a citation per curiam opinion in August 2014; Ellis v. State, 145
So. 3d 216 (Mem.) (Fla. 3d DCA 2014).
Ellis filed the subject postconviction motion in July 2015 (and a pro se
amendment shortly after that). The trial court appointed the Office of Criminal
Conflict and Civil Regional Counsel to represent Ellis. Appointed counsel filed
two amendments to the postconviction motion, ultimately asserting six claims, and
the matter was set for an evidentiary hearing.
The trial court heard the testimony of two of the public defenders for Ellis; a
bank employee with knowledge of the surveillance video system operated by the
bank where, according to the victimís trial testimony, Ellis compelled her to
attempt to withdraw funds; a motel manager for the motel where the alleged
criminal incidents occurred; and the defendant.
The trial court granted the postconviction motion based on three claims of
ineffective assistance: (1) defense counselís inability to investigate the bank branch
and drug store surveillance video that might have corroborated or disproven the
alleged victimís account of the incidents, and failure to file a motion to dismiss
based upon the prejudice resulting from the prearrest delay (loss of prospectively
exculpatory video recordings); (2) the duty to investigate the crime scene (and in
this case, the motelís check-in records for the dates in question); and (3) counselís
failure to impeach the victim and failure to investigate an alibi. The Stateís appeal
On appeal from the order granting Ellisís postconviction claims of
ineffective assistance by defense counsel, we apply a mixed standard of review.
We defer to the trial courtís factual findings based on competent, substantial
evidence in the underlying case and in the evidentiary hearing on the
postconviction motion. See Hoskins v. State, 75 So. 3d 250, 253-54 (Fla. 2011).
The trial courtís conclusions of law are reviewed de novo. See id. at 254.
The standard for prevailing on these claims is established in Strickland v.
Washington, 486 U.S. 668 (1984). Ellis had the initial burden to identify specific
acts or omissions demonstrating that defense counselís performance was
unreasonable under prevailing professional norms. See Hoskins, 75 So. 3d at 253
54. Defense counselís performance before and during trial must be shown to have
been ďso serious that counsel was not functioning as the Ďcounselí guaranteed the
defendant by the Sixth Amendment.Ē Strickland, 466 U.S. at 687.
Next, Ellis was required to prove that he was prejudiced by the deficient
performance of his trial counsel. Id. To succeed under the prejudice prong, the
defendant must show that ďthere 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.Ē Id. at 694. ďIn assessing prejudice, courts must consider the totality of
the evidence presented in postconviction, along with the evidence adduced at trial,
to determine whether there is a reasonable probability that the outcome would have
differed.Ē Ciambrone v. State, 128 So. 3d 227, 230 (Fla. 2d DCA 2013).
The evidence presented during the postconviction hearing disclosed that the
bank destroyed its digital surveillance video recordings after 90 days, and that the
drug store did so after 30 days. Actual prejudice was demonstrated, because the
recordings were potentially exculpatory2 and the State provided no explanation for
the yearlong delay between the victimís report and the filing of the case (initiating
defense counselís investigation of the alleged incidents). There is a reasonable
probability that the case may have been dismissed based on that delay, the failure
to secure the video recordings and motel records, and the resulting prejudice to
The motel managerís testimony established that, had defense counsel
investigated the motel records, it would have shown that neither Ellis nor the
victim was at the motel on the date of the criminal acts alleged to have occurred
2 We reject the Stateís argument that Ellisís claims are merely speculative regarding what might have been shown by the bank and drug store video recordings had they been preserved. A negative inference cannot be drawn against a defendant based on the Stateís failure to secure evidence. See Fleming v. State, 624 So. 2d 797, 798-99 (Fla. 1st DCA 1993).
there. It was also established that defense counsel did not investigate the victimís
alleged pregnancy or Ellisís alibi that he was still at the drug treatment center on
the day of the alleged incidents.
Considering the effects of these lapses on Ellisís ability to impeach the
credibility of the alleged victim (who was the sole witness to provide evidence
against Ellis at trial), the postconviction court properly concluded that counselís
deficient performance caused prejudice and that there exists a reasonable
probability the result of the proceedings would have been different had the lapses
not occurred. Under the test articulated in Rodgers v. State, 511 So. 2d 526, 531
(Fla. 1987), defense counselís failure to move for dismissal (based on the delay
between the alleged commission of the crime and the defendantís arrest), amounts
to a due process violation.
The trial court also correctly concluded that Ellis was entitled to relief under
Lee v. State, 899 So. 2d 348 (Fla. 2d DCA 2005), an analogous case in which (a)
there was no strategic reason for defense counselís failure to investigate, and (b)
the Stateís case rested entirely on the alleged victimís testimony.