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Florida Third District Court of Appeal - Criminal Headnotes - January 31, 2018

DEREK LORENZO JOHNSON V. STATE OF FLORIDA – INEFFECTIVE ASSISTANCE OF COUNSEL; VOLUNTARINESS OF DECISION NOT TO TESTIFY

Appeal from order denying multiple motions for post-conviction relief. On appeal, the defendant argued that his trial counsel had prevented him from making an informed, voluntary decision not to testify in his own defense.

The appeals court noted these were not the terms on which the defendant had raised the issue in the trial court, where his argument was that his trial counsel had erroneously advised him that if he did testify, the details of his prior convictions would be disclosed to the jury. But because the voluntariness of his decision not to testify was "indirectly raised" in the course of the hearing on the motions, and because state did respond to the argument in its brief on appeal, the appeals court did address the issue on its merits.

As a threshold matter, the appeals court observed that a strategic or tactical decision as to how to conduct the trial cannot be the basis of a claim of ineffective assistance of counsel unless the decision is one that no competent lawyer would make.

With respect to the question whether the defendant's decision not to testify was voluntary, the court quoted at length from the trial transcript, which showed that the trial judge had questioned the defendant in some detail to ascertain that the decision was in fact voluntary.

The appeals court declined to address the defendant's further argument, raised for the first time on appeal, that if his trial counsel had discussed the matter with him prior to the commencement of the trial, and if he had prepared the defendant for cross-examination, he would have been better able to consider the decision calmly.

Affirmed.