Third District Court of Appeal
State of Florida
Opinion filed October 26, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-1373
Lower Tribunal Nos. F12-31964B, F13-14746
________________
Jaslen Michel,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from
the Circuit Court for Miami-Dade County, Milton Hirsch, Judge.
Jaslen Michel, in proper person.
Ashley Moody, Attorney General, for appellee.
Before LINDSEY, GORDO and LOBREE, JJ.
GORDO, J.
Jason Michel appeals the trial court’s summary denial of his post-
conviction motion alleging ineffective assistance of counsel pursuant to Fla.
R. Crim. P. 3.850. We have jurisdiction. Fla. R. App. P. 9.141(b)(2). Michel
asserts his counsel was ineffective for failing to file a motion to suppress the
photo-lineup identification process used as unduly suggestive. As the record
conclusively demonstrates there was no legal basis for filing such a motion,
we affirm.
“In Strickland v. Washington,
466 U.S. 668, 687,
104 S. Ct. 2052,
80
L.Ed.2d 674 (1984), the United States Supreme Court set forth a two-prong
test to be applied by courts in analyzing claims of ineffective assistance of
counsel.” Schwab v. State,
814 So. 2d 402, 408 (Fla. 2002). First, “the
defendant must show that counsel’s representation fell below an objective
standard of reasonableness” based on “prevailing professional
norms.” Strickland,
466 U.S. at 688. Second, “[t]he defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. at
694. We defer to the trial court’s findings of fact as long as there is
competent, substantial evidence supported by the record. See Stephens v.
State,
748 So. 2d 1028, 1033–34 (Fla.1999). “[T]here is no reason for a
court deciding an effective assistance claim . . . to address both components
2
of the inquiry if the defendant makes an insufficient showing on
one.” Strickland,
466 U.S. at 697. “[A] court need not determine whether
counsel’s performance was deficient before examining whether the alleged
deficiency was prejudicial.” Eutzy v. State,
536 So. 2d 1014, 1015 (Fla.
1989).
We start with the well-established premise that counsel cannot be
deemed ineffective for failing to file a meritless motion. See Dickerson v.
State,
285 So. 3d 353, 358 (Fla. 1st DCA 2019) (“Trial counsel cannot be
held to have been ineffective for not making meritless motions.”);
Schoenwetter v. State,
46 So. 3d 535, 546 (Fla. 2010) (“[C]ounsel cannot be
deemed ineffective for failing to make a meritless argument.”). “In order to
warrant exclusion of evidence of the identification, the identification
procedure must have been so suggestive, and the witness’ unassisted ability
to make the identification so weak, that it may reasonably be said that the
witness has lost or abandoned his or her mental image of the offender and
has adopted the identity suggested.” Baxter v. State,
355 So. 2d 1234, 1238
(Fla. 2d DCA 1978).
Here, the record conclusively establishes the officer showed the victim
a six-photo lineup after having him read and acknowledge his understanding
of a detailed form indicating the perpetrator may not be among the six
3
photos; that he is “not obligated to choose any of the photos;” that it “is just
as important to clear innocent people from suspect prosecution, as it is to
identify guilty parties;” that the victim “should not feel that [he] ha[s] to make
an identification.” The victim testified the lighting conditions were adequate,
immediately identified Michel in the photo lineup, insisted he was certain
when questioned, and testified that Michel’s image while pointing the gun at
his face has haunted him.
The record reveals no basis in law or in fact to argue suggestiveness
or a likelihood of misidentification sufficient to exclude the identification.
Accordingly, we find no error in the trial court’s well-reasoned order citing to
portions of the record and its conclusion that such a motion would be
meritless. See Curtis v. State,
204 So. 3d 463, 466 (Fla. 4th DCA 2016)
(“Assuming, arguendo, that there was deficient performance by counsel for
failure to investigate and to move to suppress the photo identification, [the
defendant] has not established a probability that the deficiency was sufficient
to undermine confidence in the outcome of the verdict. Thus, we determine
that reversal on this issue is not warranted because [the defendant] has
failed to meet the prejudice prong of Strickland.”).
Affirmed.
4
