MICHAEL JOHNS vs STATE OF FLORIDA

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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 MICHAEL JOHNS, Appellant, v. Case No. 5D19-2883 STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed July 31, 2020 3.850 Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge. James S. Purdy, Public Defender, and Robert Jackson Pearce, III, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Richard A. Pallas, Jr., Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM. 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 (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 hearing1 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. ORFINGER and WALLIS JJ., concur. TRAVER, J., concurs in the result. 1 If Johns remains indigent for this hearing, the successor postconviction court should appoint him counsel. 2

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