Christopher Owens v. State of Florida

FIFTH DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                     Case No. 5D2025-1866
                 LT Case No. 2017-303704-CFDB
                 _____________________________

CHRISTOPHER OWENS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


3.850 Appeal from the Circuit Court for Volusia County.
Leah R. Case, Judge.

Christopher Owens, Daytona Beach, pro se.

James Uthmeier, Attorney General, Tallahassee, and Kristen L.
Davenport, Assistant Attorney General, Daytona Beach, for
Appellee.

                         April 22, 2026


PER CURIAM.

     Christopher Owens timely appeals the postconviction court’s
final order that summarily denied ground four of his Florida Rule
of Criminal Procedure 3.850 amended motion for postconviction
relief. This is the second time we are addressing the amended
motion. In Owens v. State, 408 So. 3d 870, 876–77 (Fla. 5th DCA
2025), we affirmed the postconviction court’s denial of all but
ground four of the amended motion. As to ground four, we reversed
the court’s summary denial; and we remanded for the lower court
to either attach additional records to its order to conclusively show
that Owens was not entitled to relief or to hold an evidentiary
hearing. Id.

    For the reasons explained below, we reverse the current
summary denial of ground four and remand for further
proceedings.
                             I

     Owens alleged in ground four of his amended motion that his
trial counsel was ineffective for failing to object to various
comments made by the prosecutor during voir dire that Owens
contended improperly and unfairly commented on his Fifth
Amendment right under the United States Constitution to remain
silent. Under Strickland v. Washington, 466 U.S. 668, 694 (1984),
to establish his claim for ineffective assistance of trial counsel,
Owens had to show that his counsel’s performance was deficient
and that he was prejudiced thereby, meaning that a reasonable
probability existed that, but for counsel’s deficient performance,
the result of his trial would have been different. 1

    In its previous denial of ground four, the postconviction court
attached to its order four pages from the trial transcript of the
prosecutor’s voir dire. As discussed in our prior opinion, these
pages showed the prosecutor asking the prospective jurors if they
would hold it against Owens if he elected not to testify. Owens,
408 So. 3d at 872. After receiving a response from a venire member
that choosing not to testify may indicate that Owens had
something to hide, the prosecutor inquired of the panel if they

    1 Owens was convicted by a jury of sexual battery by a person

eighteen years of age or older on a person eighteen years of age or
older and was sentenced to serve fifteen years in prison as a Prison
Releasee Reoffender. Owens was also convicted of committing
battery on a second victim and received a “time-served” concurrent
jail sentence. Owens’s judgment and sentences were affirmed on
direct appeal without opinion. Owens v. State, 282 So. 3d 108 (Fla.
5th DCA 2019).


                                 2
could think of other reasons why a defendant might choose to
remain silent. Id. at 872–73. This led to various comments
between the prosecutor and the prospective jurors on why a
defendant may elect not to testify, such as the defendant not
having the best of social skills, the defendant not communicating
effectively, “body language,” the avoidance of cross-examination,
and upon “advice of counsel.” Id. at 873.

     The records attached to the order then showed the prosecutor
advising the panel that Owens and his counsel “had no burden of
proof whatsoever” in the case, which the prosecutor attempted to
illustrate by noting that Owens’s counsel “could put her feet up
and play on her phone for the entire trial.” Id.

     The postconviction court found that Owens’s counsel had not
been ineffective for failing to object to any of the prosecutor’s
comments during voir dire, concluding that it would have been
both “improper” and “ill-advised” for counsel to have done so as the
prosecutor was simply “ensuring [that Owens] had a fair trial.” Id.
(alteration in original).

                                 II

     In reversing the postconviction court’s prior summary denial
of ground four, we determined that the limited, four-page record
attached to the order caused us to be unable to conduct a prejudice
analysis under Strickland, nor did the records conclusively refute
Owens’s claim. Id. at 875–76.

     We made clear that though we were reversing and remanding
on this ground, Owens was not necessarily entitled to a new trial,
noting that not every comment made by a prosecutor during voir
dire concerning a defendant’s right to remain silent was always
inappropriate. Id. at 876 n.5 (citing Grieve v. State, 731 So. 2d 84,
84 (Fla. 4th DCA 1999)). Consistent with this observation, we also
quoted from the United States Supreme Court’s decision in United
States v. Young, 470 U.S. 1, 11 (1985), that “[a] criminal conviction
is not to be lightly overturned on the basis of a prosecutor’s
comments standing alone, for the statements or conduct must be
viewed in context” because “only by doing so can it be determined



                                 3
whether the prosecutor’s conduct affected the fairness of the trial.”
Owens, 408 So. 3d at 876.

                                 III

      Following our remand, the postconviction court again
summarily denied ground four of Owens’s amended motion. In
addition to the four transcript pages from the prosecutor’s voir
dire that it had previously attached, the court appended to its
present denial order additional transcript pages from the
prosecutor’s voir dire.

      The court explained the significance of these additional
records as demonstrating that the prosecutor did not initiate the
discussion on Owens’s constitutional right to remain silent.
Rather, the prosecutor had been inquiring of the prospective
jurors’ ability to return a guilty verdict based solely on witness
testimony when one member of the panel stated that she would
need to hear Owens’s version of the events. The order described
the prosecutor responding that Owens had the right not to testify,
the exercise of which could not be held by the jury against him
because it was the State’s burden to prove its case. And, as
outlined earlier, the prosecutor then explained his comments by
discussing with the venire the various reasons why a defendant
might exercise his or her right not to testify.

       The lower court found that Owens was not entitled to relief
on ground four as he was “unable to establish that there was a
reasonable probability that the prosecutor’s error affected [the]
verdict.” The court explained its ruling that one prospective juror
who, after the prosecutor’s discussion about a defendant’s right to
remain silent, maintained that a defendant who chose not to testify
may have “something to hide” was excused from the panel for cause
and the other prospective jurors collectively agreed they would not
hold it against Owens if he did not testify. The postconviction court
also attached to its order transcript pages showing where the trial
court instructed the jurors, just prior to their deliberations, that
Owens had exercised a fundamental right in choosing not to
testify, which they were not to consider as an admission of guilt by
him and must not influence their verdict.



                                 4
      Owens timely appealed.

                                 IV

       Rule 3.850(f)(5) 2 permits a court to summarily deny a legally
sufficient ground for postconviction relief based upon the records
in the case. But if it does so, the postconviction court must attach
to its denial order a copy of that portion of the records that
conclusively shows that the defendant is entitled to no relief. Id.
And where, as here, no evidentiary hearing is held, an appellate
court is required to accept the defendant’s factual allegations in
the Rule 3.850 motion, to the extent that the allegations are not
refuted by the record. Peede v. State, 748 So. 2d 253, 257 (Fla.
1999) (citing Lightbourne v. Dugger, 549 So. 2d 1364, 1365 (Fla.
1989)).

      Our review of the postconviction court’s summary denial of
ground four of Owens’s Rule 3.850 amended motion is de novo. See
State v. Coney, 845 So. 2d 120, 137 (Fla. 2003).

                                 V

       Owens argues, as he did below, that he was prejudiced by his
trial counsel’s deficient performance in not objecting to the various
statements made by the prosecutor during voir dire on his
constitutional right to remain silent. Owens further maintains
that the records attached by the postconviction court to the denial
order do not conclusively refute this claim.

       Florida has “adopted a very liberal rule for determining
whether a comment constitutes a comment on silence.” Marston v.
State, 136 So. 3d 563, 569 (Fla. 2014) (quoting State v. DiGuilio,
491 So. 2d 1129, 1135 (Fla. 1986)). To that end, “[a]ny comment
on, or which is fairly susceptible of being interpreted as referring
to, a defendant’s failure to testify is error and is strongly
discouraged.” Id. (quoting Rodriguez v. State, 753 So. 2d 29, 37
(Fla. 2000)).

    2 Effective January 1, 2026, this subsection of the rule has

been renumbered as Rule 3.850(h)(5).


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      The Florida Supreme Court’s decision in Marston, cited by
the postconviction court in the subject denial order, though it
involved a defendant’s direct criminal appeal and not, as here, an
appeal from the denial of a defendant’s Rule 3.850 motion for
postconviction relief, is nevertheless informative regarding
Owens’s claim. The Marston court was tasked with deciding
whether the prosecutor had impermissibly commented during voir
dire on the defendant’s constitutional right to remain silent and, if
so, whether the error was harmless. Id. at 565.

      The court observed that the prosecutor first broached the
subject of a defendant’s right to remain silent with the prospective
jurors. Id. The prosecutor advised the panel that as it was the
State’s burden to prove the case, the defendant and his attorneys
could “sit there and play dominoes the whole time” and the jury
could not hold it against them. Id. He further explained that this
meant the defendant had the right to remain silent and the State
could not call the defendant to testify. Id. As a result, the jury
may not hear from the defendant “at all” and could not wonder
what the defendant might have said had he testified. Id. at 565–
66. Then, in response to a comment from a venire member, the
prosecutor advised that the defendant could talk if he wanted, as
defense counsel may choose to put the defendant on the stand. Id.
at 566.

       At this point, defense counsel objected and asked the trial
court to issue a curative instruction on the defendant’s right to
remain silent. Id. The trial court declined; instead, it told defense
counsel that he could later clarify for the jurors the defendant’s
right to remain silent. Id. The court also directed the prosecutor to
make clear that the defendant had no burden of proof. Id.

       The prosecutor responded by reiterating to the venire that
the State had the sole burden of proof and that the defendant had
the absolute right to remain silent. Id. When asked whether the
defendant would “explain his position at all,” the prosecutor
advised that defense counsel may address this issue further but
that one of the rules the jury must accept is that the defendant
“has the absolute right to keep his mouth shut the entire time.”
Id. at 567.



                                 6
      The Florida Supreme Court found these “extensive remarks
iterated by the prosecutor were improper and demeaned [the
defendant’s] constitutional right to remain silent.” Id. at 570. It
concluded that the trial court erred in not sustaining defense
counsel’s objection and in refusing to give a curative instruction.
Id.

       Because comments on a defendant’s silence may constitute
harmless error, see DiGuilio, 491 So. 2d at 1137, the court then
analyzed whether the trial court’s error was harmless. Marston,
136 So. 3d at 571. The court first reiterated that “[c]omments on
silence are high risk errors because there is a substantial
likelihood that meaningful comments will vitiate the right to a fair
trial,” id. (quoting DiGuilio, 491 So. 2d at 1136); and then, as part
of its harmless error evaluation, the court described some of the
evidence that had been offered against the defendant at trial. Id.
at 572.

      The court also acknowledged that the jury had been
preliminarily instructed by the trial court that a defendant had an
absolute right to remain silent, from which the jury may not draw
any inference of guilt, nor may the defendant’s silence influence its
verdict in any manner whatsoever. Id. at 567. The court further
noted that just prior to their deliberations, the jurors were
instructed by the trial court on (1) the defendant’s presumption of
innocence, (2) the State having the sole burden of proving the
crime, and (3) the defendant having exercised his fundamental
right not to be a witness in the case, which was not to be viewed
by them as an admission of guilt nor influence their decision in any
way. Id. at 568.

       While acknowledging that jurors are presumed to follow a
trial court’s instructions on the law, the court nevertheless found
that the prosecutor’s comments in voir dire on the defendant’s
right to remain silent had been so prejudicial that the above jury
instructions had not cured the harm. Id. at 572. Concluding that
harmless error had not been shown, the court reversed and
remanded for a new trial. Id. at 572–73.




                                 7
                                VI

      Returning to the matter before us, the postconviction court’s
order on Owens’s ground four claim following our remand noted,
consistent with Marston, that a prosecutor’s comments on a
defendant’s right to remain silent may constitute harmless error.
Placing this comment in the context of the Rule 3.850 proceeding
before the lower court, and as explained by the Florida Supreme
Court, when a prosecutor’s comments during voir dire are
harmless, then a defendant is unable to demonstrate the requisite
prejudice under Strickland to be entitled to postconviction relief,
irrespective of whether trial counsel’s performance was deficient.
See Cox v. State, 966 So. 2d 337, 347 (Fla. 2007). The court held:

    The harmless error test as articulated, by this Court
    requires the State “as the beneficiary of the error, to
    prove beyond a reasonable doubt that the error
    complained of did not contribute to the verdict or,
    alternatively stated, that there is no reasonable
    possibility that the error contributed to the
    conviction.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.
    1986).     Thus, in concluding that the prosecutor’s
    misstatements of the law during voir dire constituted
    harmless error, we held that there was no reasonable
    probability that these misstatements contributed to [the
    defendant’s] conviction. See id. Therefore, regardless of
    whether counsel was deficient for failing to object to
    improper statements by the prosecution, [the defendant]
    cannot demonstrate prejudice under the second prong
    of Strickland.

Id. (citation omitted).

                               VII

      The prosecutor’s repeated, unobjected-to comments during
voir dire on the various reasons a defendant, like Owens, would
choose to remain silent appear to come within those “high risk
errors” warned about by the Florida Supreme Court. See Marston,
136 So. 3d at 571 (citing DiGuilio, 491 So. 2d at 1136). The
question now before us to decide on appeal is whether the


                                8
additional records attached by the postconviction court to its
present summary denial order conclusively refute Owens’s claim
that he was prejudiced by his trial counsel’s inaction. These
records showed (1) that the prosecutor did not initiate the
discussion concerning Owens’s right to remain silent, (2) the one
juror who still expressed a need to hear from Owens was removed
for cause, and (3) the other jurors agreed they would not hold it
against Owens if he chose not to testify.

       We conclude that the additional attached records still
provide insufficient context to allow us to conduct the prejudice
analysis required under Strickland and thus have not conclusively
refuted the claim. See Young, 470 U.S. at 11 (recognizing that a
criminal conviction is not to be lightly overturned based solely on
a prosecutor’s comments as those statements must be viewed in
context). By way of example, no information is provided in the
attached records (1) describing any of the evidence presented at
trial, (2) indicating whether the trial court gave a preliminary
instruction before voir dire on a defendant’s right to remain silent,
or (3) showing the extent of defense counsel’s own voir dire
discussing with the prospective jurors Owens potentially
exercising his right not to testify.

                                VIII

       For the various reasons set forth in this opinion, we reverse
the current order summarily denying ground four of Owens’s
amended motion for postconviction relief and remand for the
postconviction court either to conduct an evidentiary hearing on
this ground or to attach additional records to its denial order. See
Jennings v. State, 123 So. 3d 1101, 1121 (Fla. 2013) (“Generally, a
defendant is entitled to an evidentiary hearing on a rule 3.850
motion unless . . . the motion, files, and records in the case
conclusively demonstrate that the movant is entitled to no
relief . . . .” (citation omitted)).

      REVERSED and REMANDED for additional proceedings
consistent with this opinion.


SOUD and KILBANE, JJ., concur.


                                 9
LAMBERT, J., concurs, with opinion.
                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________




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                                           Case No. 5D2025-1866
                                  LT Case No. 2017-303704-CFDB

LAMBERT, J., concurring with opinion.

      I concur with the majority opinion. I write separately to
address the State’s argument that the prosecutor’s comments were
not improper but instead were similar to those found permissible
in Grieve, 731 So. 2d at 84, and Rosa v. State, 696 So. 2d 1299 (Fla.
3d DCA 1997).

      In Grieve, the trial court, prior to voir dire, had “correctly
and extensively” stated the law regarding a defendant’s right to
remain silent at trial. 731 So. 3d at 84. Then, in response to a
potential juror’s statement that he would probably have to hear
from the defendant as to how the shooting in this case occurred,
the prosecutor “referred to the trial judge’s earlier remarks
without misstating the law.” Id. The Fourth District Court found
no reversible error in the prosecutor’s comments. Id.

      Similarly, in Rosa, the trial court instructed the prospective
jurors on the defendant’s right to remain silent and his
presumption of innocence. 696 So. 2d at 1300. Then, during the
prosecutor’s voir dire, one panelist indicated that she felt that she
should hear “both sides of the story.” Id. The prosecutor responded
that the trial judge had previously explained that the defendant
did not have to say anything and asked the juror if she could render
a fair verdict if she only heard from the State. Id. When the
prospective juror responded that she would still need to hear from
both sides, the prosecutor advised that the trial judge would
instruct that a defendant has a constitutional right not to say
anything. Id.

      Defense counsel objected to the prosecutor’s comments as
impermissibly infringing on the defendant’s right to remain silent.
Id. The trial court overruled the objection, pointing out that the
prosecutor’s response was accurate and defense counsel could
make any corrections during her voir dire. Id.

      On appeal, the defendant argued that he was entitled to a
new trial based on the comments made by both the prosecutor and


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the trial judge. Id. at 1301. The Third District Court affirmed. Id.
It found that the prosecutor’s response to the venire was not an
improper comment on a defendant’s failure to testify as the trial
court had previously instructed the potential jurors that if the
defendant elected not to testify, they could not hold it against him.
Id.

       The present case differs from Grieve and Rosa. First, and
perhaps most significantly, the prosecutor here did not respond to
the venire member’s inquiry of wanting to hear both sides by
simply referring back to the trial court’s earlier instructions.
Instead, the prosecutor provided the prospective jurors with many
reasons why a defendant in a criminal trial may choose not to
testify, including that Owens may not want to answer questions
from the prosecutor and that his counsel may advise him not to
testify. Second, while Grieve and Rosa both describe that the trial
court in each case, prior to voir dire, gave an instruction on a
defendant’s right to remain silent, there are no record attachments
to the present denial order as to what, if any, comments or
instructions the trial court may have given on a defendant’s right
to remain silent prior to voir dire.




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