sunEthics 

Covering legal ethics, judicial ethics, bar admissions in Florida, Tennessee, and nationally.  See our Subject Index to past postings.

Florida - INEFFECTIVE ASSISTANCE of COUNSEL (and Right to Counsel)

Defendant’s conviction reversed due to inadequate Faretta inquiry before Stand Your Ground hearing. [Added 10/18/24]
  Criminal Defendant was charged with battery and was represented by a public defender, who filed a motion to dismiss under the Stand Your Ground (SYG) law, F.S. 776.032.  At the hearing on the motion, Defendant announced that he wanted to represent himself.  The court allowed him to do so without a proper Faretta procedure.  Defendant testified at the hearing, and the court denied the motion.
  Defendant represented himself at trial and was found guilty, although his SYG hearing testimony was not used.  Defendant appealed, contending that “the trial court fundamentally erred when it failed to conduct an adequate Faretta hearing at the SYG hearing.  Specifically, Defendant argues that an SYG hearing is a critical stage of the proceedings that requires a Faretta inquiry and that the failure to give a Faretta hearing is per se reversible error.”  In response, the State contended that “Defendant was sufficiently ‘legally savvy’ so as not to require a full Faretta inquiry and that any error was harmless.”
  The appeals court agreed with Defendant.  The SYG hearing was a critical stage of the proceeding, requiring a full Faretta hearing.  Further, the court observed, “the Florida Supreme Court has determined that Faretta violations at a critical stage of the criminal proceeding are ‘per se reversible error.’  Thus, a harmless error analysis is not available here.”
  The court noted that non-compliance with Faretta has been allowed “where a defendant has proven himself sufficiently sophisticated in his knowledge of the courts and the law.”  That is “clearly the exception and not the rule.”  (Citation omitted.)  The record in this case did not support applying that exception.  Sherrod v. State, __ So.3d __ (Fla. 4th DCA, No. 4D2023-0881, 10/2/2024), 2024 WL 4364578.


Court erred in not appointing conflict-free counsel when represented defendant filed pro se motion to withdraw plea. [Added 10/4/24]
  “Appellant” was charged with 3 offenses relating to seeking sexual contact with a minor.  He entered a no contest plea to all 3 charges, but before sentencing filed a written pro se motion to withdraw plea pursuant to Fla.R.Civ.P. 3.170(f).  Grounds alleged included “that trial counsel had not visited Appellant in a year, that counsel never took a deposition of one of the officers involved in the chats or interviewed two other officers who had taken a statement from Appellant, that counsel should have deposed additional witnesses, that counsel should have demanded a statement of particulars, that there were jurisdiction issues, and that there was a double jeopardy issue with convictions for both solicitation and using a two-way communication device.”  The court struck the motion as a nullity because Appellant was represented “and specifically found that the motion had not made allegations of an adversarial relationship between Appellant and his counsel.”
  At the sentencing hearing Appellant again asserted that he wanted to withdraw his plea based on 2 specific double jeopardy allegations.  Appellant’s counsel stated that he did not agree with the arguments and that “if Appellant continued with his motion to withdraw plea, counsel would have to withdraw” because the pro se motion essentially argued “that counsel was ineffective.”  The court denied the motion to withdraw plea for lack of a legal basis.  Appellant was sentenced.  He appealed.
  The First DCA reversed.  “Similarly to the facts in Jones [v. State, 74 So.3d 118 (Fla. 1st DCA 2011)], Appellant’s trial counsel informed the court that he did not agree that Appellant’s pro se motion to withdraw plea had any merit and that if Appellant proceeded with the motion, counsel would seek to withdraw from the representation.  This sufficiently demonstrated an adversarial relationship between Appellant and his trial counsel.”   If the court finds an adversarial relationship between the defendant and counsel, the court must appoint conflict-free counsel for the defendant unless the record conclusively refutes the defendant’s allegations.  Here, one of the allegations was not conclusively refuted by the record.  Accordingly, the appeals court reversed and remanded.  Morrow v. State, __ So.3d __ (Fla. 1st DCA, No. 1D2022-2947, 9/11/2024), 2024 WL 4142266.


Court erred in not renewing offer of counsel before hearing defendant’s motion for new trial. [Added 8/30/24]
  Criminal Defendant was convicted of battery on a correctional officer and related offenses.  He appealed, contending inter alia that the trial court erred in failing to renew an offer of counsel before the hearing on his motion for new trial.  The First DCA agreed and reversed.
  Although the court conducted a proper Faretta hearing when Defendant asked to represent himself, and renewed the offer of counsel “many times throughout the proceedings.”  The court, however, failed to renew the offer of counsel at the start of the sentencing hearing when it heard argument on Defendant’s motion for new trial.  This was reversible error, entitling Defendant to a new hearing on the motion for new trial.  The appeals court remanded for the new hearing.  Bryan v. State, __ So.3d __ (Fla. 1st DCA, No. 1D2022-0957, 8/7/2024), 2024 WL 3685855.



Sixth DCA reverses denial of motion to withdraw guilty plea due to trial court’s failure to offer assistance of counsel. [Added 8/5/24]
  Criminal Defendant was pro se in his case.  He had been charged with child abuse and ultimately entered a no-contest plea to a lesser included offense (and to DUI).  After he was convicted and sentenced, he filed four documents with the trial court including a motion to withdraw from the plea agreement.  The trial court denied the motions.  Defendant appealed, contending that “the trial court ‘erred in failing to inform [him] of his right to the assistance of counsel in preparing and presenting’ his motion to withdraw plea.”

 The Sixth DCA agreed and reversed.  A criminal defendant representing himself is entitled to be offered assistance of counsel at each critical stage of the case, and a motion to withdraw plea is a critical stage.  The appeals court summarized:  “In this case, [Defendant] proceeded pro se throughout the trial court proceedings and similarly filed his post-judgment motions, including the motion to withdraw plea, pro se.  The trial court diligently renewed the offer of counsel at each critical stage of the proceedings prior to accepting [Defendant]’s plea.  But it did not renew that offer before dismissing the motion to withdraw plea.  Nor did [Defendant] waive his right to counsel at this stage.  . . .  Consequently, we are compelled to reverse.”​ Brannon v. State, __ So.3d __ (Fla. 6 th DCA, No. 6D2023-2765, 7/26/2024), 2024 WL 3544812.​



Successor judge did not err by not conducting another Faretta inquiry when defendant asked to represent himself a second time.  [Added 7/20/24]
  Criminal Defendant was convicted of murder and escape.  Defendant had originally been permitted to represent himself by the predecessor judge, then decided to be represented by counsel, then was permitted to represent himself again by the successor judge.  After his conviction, Defendant alleged on appeal that he successor judge erred in 2 ways:  “by not conducting another inquiry of the defendant pursuant to Faretta v. California, 422 U.S. 806 (1975), when the defendant requested to represent himself the second time; and (2) by failing to make an independent finding of the defendant’s competency to proceed, despite the predecessor judge having ordered a mental health expert to examine the defendant’s competency to proceed.”
  The Fourth DCA rejected Defendant’s Faretta argument but reversed for a competency hearing.
  The court explained that the Faretta claim lacked merit “because: (a) the predecessor judge had conducted a proper Faretta inquiry when the defendant initially had requested to represent himself at the beginning of the case, after which the predecessor judge found the defendant knowingly, intelligently, and voluntarily waived his right to counsel; (b) the predecessor judge, at six more pretrial hearings over the next three years, reminded the defendant of the pros and cons of self-representation, after which the defendant repeatedly confirmed that he still wanted to represent himself; (c) the pretrial hearing before the successor judge at which the defendant requested to represent himself for a second time was not a ‘crucial stage of the proceedings’ – that is, ‘any stage that may significantly affect the outcome of the proceedings’ – at which a Faretta inquiry must be renewed, Traylor v.State, 596 So.2d 957, 968 (Fla. 1992); (d) no ‘substantial change in circumstances’ had occurred which would have caused the successor judge to question the predecessor judge’s original ruling on the defendant’s request for self-representation, Noetzel v. State, 328 So.3d 933, 951 (Fla. 2021); (e) the successor judge, at two more pretrial hearings, reminded the defendant of his right to counsel, after which the defendant again confirmed that he still wanted to represent himself; and (f) at both the pretrial conference one week before trial and on the first day of trial, the successor judge conducted Faretta inquiries of the defendant, after which the successor judge properly found the defendant had knowingly, intelligently, and voluntarily waived his right to counsel.”  Perkins v. State, __ So.3d __ (Fla. 4th DCA, No. 4D2022-3276, 7/17/2024), 2024 WL 3434104.​


First DCA strikes Anders brief as insufficient under Fla.R.App.P. 9.140 and In re Anders Briefs, 581 So.2d 149 (Fla. 1991). [Added 7/15/24]
  Appointed Counsel filed an Anders brief under Fla.R.App.P. 9.140(g)(2) for a convicted criminal defendant.  The brief certified that “undersigned counsel has concluded that no good faith argument can be made that reversible error occurred in the lower court.”  The First DCA pointed out, however, that the brief “does not refer to every legal point in the record that might support an appeal.”  This was not sufficient to comply with the requirements of the rule and of In re Anders Briefs, 581 So.2d 149 (Fla. 1991).  The First DCA ordered the brief stricken.
  The appellate court explained that “an Anders brief if not compliant simply because it ‘states an appeal would be frivolous.’”  In this case, “appointed counsel showed a mastery of the record, but did not ‘identify the arguments that may be advanced on appeal’ as required by In re Anders Briefs.  The brief’s Argument section merely describes a single motion that Appellant filed, his motion for judgment of acquittal.  Instead of explaining why an appeal of the order denying that motion may be frivolous, the brief states that this Court ‘should determine whether the trial court erred when it denied Appellant’s motion for judgment of acquittal,’ and if so, should order briefing.  This Court has an obligation to independently review the record, see Anders, 386 U.S. at 745; In re Anders Briefs, 581 So.2d at 151; Fla. R. App. P. 9.140(g)(2)(A), but only after appointed counsel has complied with her obligations under Anders, its progeny, and rule 9.140(g)(2)(A).”  Blackmon v. State, __ So.3d __ (Fla. 1 st DCA, No. 1D2022-2943, 7/3/2024), 2024 WL 3281883.


Fourth DCA reverses grant of Rule 3.850 motion, determining trial counsel did not render deficient performance. [Added 4/5/25]
  A postconviction court granted convicted Defendant’s Fla.R.Crim.P. 3.850 motion, finding trial counsel’s performance deficient in four areas:  failing to call a certain witness; failing to investigate a friend of the victim; failing to object to admission of a video; and cumulative error.  The postconviction court also found that the deficient performance prejudiced Defendant, and accordingly granted Defendant’s motion.  The State appealed.
  In a lengthy and detailed opinion, the Fourth DCA reversed.  It concluded that trial counsel’s performance was not deficient and that Defendant was not prejudiced.  The appellate court summarized:  “Trial counsel were both experienced attorneys and entitled to a presumption that they acted reasonably.  A review of the trial transcript shows that counsel provided Defendant adequate and zealous representation before and during the trial.  Defendant’s trial counsel’s alleged errors, even if true, do not turn what is merely a ‘conceivable effect on the outcome of the proceeding’ into a ‘[substantial] likelihood of a different result,’ as required by Strickland [v. Washington, 466 U.S. 668 (1984)] and Harrington [v. Richter, 562 U.S. 86 (2011)].  We therefore reverse the trial court’s grant of Defendant’s rule 3.850 motion.”  State v. Morris, __ So.3d __ (Fla. 4th DCA, No. 4D2023-0117, 3/6/2024), 2024 WL 949218.


Court did not abuse discretion by not advising defendant during Nelson hearing of right to self-representation. [Added 3/11/24]
  Criminal Defendant was represented by appointed counsel. Defendant wrote to the trial court expressing dissatisfaction with counsel.  The court held a Nelson hearing (Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973) and found Defendant’s allegations of ineffectiveness unpersuasive.  The court denied Defendant’s request to discharge counsel.  Defendant was tried and convicted.
  On appeal, Defendant contended that the trial court abused its discretion by failing to inform him during the Nelson hearing of his right to self-representation.  The First DCA affirmed.  “When a defendant moves to discharge counsel, a trial court is not automatically required to inform the defendant about his right of self-representation.  . . .  Rather, the trial court must inform the defendant of this right only when the defendant makes an unequivocal request to represent himself.  . . .  [Defendant] never made such a request.  Thus, the trial court did not err by not informing [Defendant] of his right of self-representation.”  (Citations omitted.)  Shaw v. State, __ So.3d __ (Fla. 1st DCA, No. 1D2022-3301, 2/21/2024), 2024 WL 698106.


Court erred in entering default judgment against party for failing to obtain counsel within specified time period. [Added 1/10/24]
  Homeowner sued Roofer over allegedly defective work.  Roofer, through counsel, filed an answer and affirmative defenses.  Roofer’s counsel then filed a motion to withdraw, which the court granted.  The court’s order gave Roofer until January 27, 2023, to obtain new counsel.  Roofer did not retain counsel within that time and Homeowner filed a motion for default.  On February 26, 2023, Roofer’s new counsel filed a notice of appearance.  On March 6, 2023, the court granted Homeowner’s motion for default.  That same day Roofer moved to set aside the default, arguing that “the filing of the notice of appearance prevented the entry of a default under Florida Rule of Civil Procedure 1.500(c).”  The court denied the motion entered a default final judgment against Roofer.  Roofer appealed.
  The Fourth DCA reversed, relying on Carillon Corp. v. Devick, 554 So.2d 630 (Fla. 4th DCA 1989).  “Here, as in Carillon, the roofer secured new counsel who filed a notice of appearance prior to entry of the default.  Moreover, up to that point, the roofer had defended the action by filing an answer and affirmative defenses.  Equally as compelling is the fact that prior to entry of the default, the county court made no findings that the roofer had intentionally disregarded the court’s order.  We hold that the filing of the notice of appearance prior to the entry of the default order meant that the roofer had ‘otherwise defended.’  Therefore, the county court was without authority to enter a subsequent default or default final judgment.”  Cherry Roofing Enterprises, Inc. v. Bader, __ So.3d __ (Fla. 4th DCA, No. 4D2023-1365, 1/3/2024), 2024 WL 24806.


Second DCA grants petition for a writ of quo warranto to preclude public defender from representing convicted criminal defendant in civil restitution lien proceeding. [Added 12/19/23]
​ O’Neal was convicted of murder and given a life sentence.  The Department of Corrections filed a motion in circuit court to impose a civil restitution lien pursuant to Fla. Stat. sec. 960.293.  The public defender filed a motion to be appointed counsel for O’Neal.  The court granted the motion.  The Department moved to vacate the appointment on the ground that O’Neal was not entitled to representation by the public defender for this proceeding, which is civil in nature.  The court denied the Department’s motion, observing that “the public defender has raised substantial claims on behalf of O’Neal and that the assistance of counsel is essential to a fair and thorough presentation of those claims” and that “the civil restitution proceeding was adversarial in nature because it arose from the criminal action against O’Neal.”
  Seeking to preclude the public defender from representing O’Neal, the Department filed a petition for writ of quo warranto.  The Second DCA granted the petition.
  The appeals court noted that proceedings to impose civil restitution liens under section 960.293 are civil in nature and pointed out that “[t]he fact that the court of conviction has jurisdiction to impose the lien does not render the proceedings criminal.”  The court concluded:  “The public defender is not authorized to represent O'Neal in this civil restitution lien proceeding because it is civil in nature and does not implicate O’Neal’s liberty interests.  Further, defending against the department’s efforts to obtain a civil restitution lien under section 960.293(2) does not invoke the due process concerns that justify the appointment of counsel in postconviction relief proceedings.”  Florida Dept. of Corrections v. Holt, __ So.3d __ (Fla. 2d DCA, No. 2D23-729, 11/29/2023), 2023 WL 8244154.


Postconviction court erred in dismissing timely filed amended rule 3.850 motion because it included ground not raised in original motion and specific leave of court had not been granted regarding new ground. [Added 10/27/23]
​ Convicted defendant Caldwell filed a one-count original motion for postconviction relief pursuant to Fla.R.Crim.P. 3.850.  This motion was dismissed as facially insufficient, but without prejudice to file an amended motion within 60 days.  Caldwell timely filed an amended motion that raised a second ground for relief.  The court denied this ground as “unauthorized” because the nonfinal order dismissing the original motion provided that no new claims could be added without leave of court.
  The Fifth DCA reversed, concluding that this denial was error.  When the 2-year filing period under rule 3.850 has not expired and the court has not issued a final order on the motion, the court “must consider any additional claims raised in the amended motion.”  In a footnote in the denial order, the postconviction court observed that ground two of the amended motion lacked supporting facts, “but since Caldwell had already been given leave to amend his original motion, he was ‘not entitled to another.’”
  The appeals court pointed out that “[w]hen an amended motion filed under rule 3.850 remains facially insufficient, as ground two was here, the postconviction court, in its discretion, may either permit the defendant an additional opportunity to amend the motion or enter a final order summarily denying the motion with prejudice.”  In this case the court reversed the order denying ground two because “it is unclear from its order and the circumstances whether the postconviction court fully understood that it possessed the discretion to allow Caldwell to amend his second ground for relief.”  Caldwell v. State, __ So.3d __ (Fla. 5th DCA, No. 5D23-1888, 10/20/2023), 2023 WL 6932594.


Defendant who pleaded guilty cannot maintain ineffective assistance claim based on counsel’s failure to reserve right to appeal denial of a motion to suppress, where defendant did not allege he would not have pleaded guilty had he known. [Added 10/6/23]
  Criminal Defendant pleaded no contest and was sentenced.  Defendant later filed a motion for postconviction relief pursuant to Fla.R.Crim.P. 3.850, alleging that trial counsel was ineffective for failing to reserve denial of his allegedly dispositive motion to suppress in the plea deal.  The court denied the motion as facially insufficient.  Defendant appealed.
  The First DCA affirmed.  A defendant who enters a no contest plea may not appeal the judgment unless the right to appeal a legally dispositive issue has been expressly reserved.  The U.S. Supreme Court has held that “a movant alleging ineffective assistance must demonstrate ‘a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’”  Hill v. Lockhart, 474 U.S. 52, 59 (1985).  Defendant did not meet this requirement.  “[Defendant] failed to allege either that he would not have pleaded guilty and would have insisted on going to trial if counsel had not performed deficiently, or that counsel’s deficient performance rendered his plea involuntary.  Without such an allegation, his ineffective-assistance claim was insufficient, and the court did not err in denying it summarily.”  Sapp v. State, __ So.3d __ (Fla. 1st DCA, No. 1D21-3679, 9/20/2023), 2023 WL 6139425.


Court did not err in ruling that father in termination of parental rights proceeding forfeited right to court appointed counsel. [Added 8/10/23]
  The Department of Children and Families (DCF) filed a petition to terminate Father’s parental rights.  Father was indigent and the court appointed counsel to represent him.  That lawyer moved to withdraw, as did the four lawyers who in turn were subsequently appointed to represent Father.  The fifth lawyer stated that Father “was ‘extremely aggressive,’ would ‘get up in my face,’ and refused to follow the attorney’s legal advice (‘he’s telling me ‘I’m not going to do anything you tell me to do because I don’t have to’’).”  The lawyer surmised that Father “needs someone [who’s] just going to listen to him berate them and tell them he doesn’t have to do anything, and thinking somehow, that’s the way to win a court case.”
 Upon granting the fifth appointed lawyer’s motion to withdraw, the court noted that it “did not have any more lawyers to appoint” and informed Father that “your actions are telling me that you wish to represent yourself because you will not accept the appropriate representation, advice and procedures of appointed counsel.”  The court declined to appoint another lawyer for Father, who represented himself in the termination of parental rights proceeding.  Father’s parental rights were terminated.
 Father appealed, contending that the trial court denied him due process by refusing to appoint counsel.  The Fourth DCA affirmed.
 The appeals court distinguished between a waiver of the right to counsel and forfeiture of that right.  Forfeiture “is an extreme measure that flows ‘from the defendant’s abuse or manipulation of [the right to counsel] and results in the defendant being required to represent himself even though he has not waived counsel and may still want legal representation.’”  (Citation omitted.)
 The court discussed case law where forfeiture was invoked in criminal cases.  The right to counsel in parental rights termination proceedings is derived from the Florida Constitution’s due process clause and so is not equivalent to the right to counsel in criminal proceedings, which is based on the U.S. Constitution.  The court concluded:  “Given that a defendant has a greater right to counsel in a criminal proceeding than a parent has in a parental rights case, if a defendant can forfeit his or her right to counsel, then so too may a parent.”  K.R. v. Department of Children and Families, __ So.3d __ (Fla. 4th DCA, No. 4D22-3378, 7/26/2023), 2023 WL 4751726.


Court did not err in denying postconviction movant’s request for appointment of counsel.  [Added 7/19/23]
  Appellant was convicted of 3 crimes and sentenced.  He filed a motion seeking postconviction relief for several alleged errors.  Appellant asked that counsel be appointed for him, “but the trial court denied his motion because the issues were not complex.”  The order reserved the option of appointing counsel during the proceedings if the court determined it was necessary.  Appellant represented himself at the evidentiary hearing, after which the court denied his motion for postconviction relief.
  On appeal Appellant contended that the court erred in not appointing postconviction counsel.  The First DCA affirmed.
  There is no right to counsel in postconviction proceedings.  Whether counsel should be appointed in a particular case depends on whether “‘assistance of counsel is essential to accomplish a fair and thorough presentation’ of a defendant’s claim(s) for collateral relief.”  (Citation omitted.)  The court is to consider various factors such as the complexity of the case and the claims at issue, the defendant’s education and apparent level of intelligence, and whether substantial legal research is needed.
  Appellant had less than a high school education, but the trial court determined that “Appellant could capably present the claims himself because the issues were not complex and did not require substantial research.”  The appeals court concluded that “Appellant capably presented his various postconviction claims, but they lacked merit. We see no abuse of discretion in the trial court’s decision to deny the appointment of postconviction counsel and affirm as to all issues raised in this appeal.”  Wade v. State, __ So.3d __ (Fla. 1st DCA, No. 1D22-1306, 6/21/2023), 2023 WL 4101315.


Fifth DCA reverses order finding ineffective assistance because postconviction court erred in selection of remedy. [Added 6/8/23]
 Alexander was tried convicted conspiracy after rejecting the State’s offer of 6 years in prison.  He was sentenced to 20 years, with a 15-year minimum mandatory term.  Alexander filed a motion for postconviction relief alleging that his trial counsel misadvised him that the State was required to prove that he conspired with every member of the alleged conspiracy.  The postconviction court found that trial counsel was ineffective and that Alexander was prejudiced as a result.  The court “specifically found that [Alexander] would have accepted the six-year offer, the State would not likely have withdrawn the offer, and the court would probably have approved it.  Nobody appeals those findings.”
  The postconviction court, however, ordered Alexander to be retried rather than requiring the State to extend the 6-year offer again.  Alexander appealed, contending that the court’s selection of remedy was in error.  Agreeing, the Fifth DCA reversed and remanded.
  Under Lafler v. Cooper, 566 U.S. 156 (2012), the proper remedy was for the State to be ordered to reoffer the rejected plea deal.  “According to both Lafler and [State v.] Elma [325 So.3d 139 (Fla. 5th DCA 2020), if [Alexander] accepts the offer, the trial court would then be required to exercise its discretion by determining whether to vacate [Alexander]’s conviction and to then resentence him pursuant to the plea agreement or to leave the conviction and original sentence undisturbed.  Id. (citing Lafler, 566 U.S. at 174).  As this Court did in Elma, we affirm the postconviction court’s order to the extent that it found [Alexander] had been prejudiced by ineffective assistance of counsel, but reverse as to the remedy.  We remand for further consideration consistent with Elma, Lafler, and this opinion.”  Alexander v. State, __ So.3d __ (Fla. 5th DCA, No. 5D23-54, 5/26/2023), 2023 WL 3664531.


Court erred in not appointing conflict-free counsel for defendant who moved to withdraw plea after sentencing. [Added 4/24/23]
  Pursuant to Fla.R.Crim.P. 3.170(l) Defendant moved to withdraw his plea after sentencing, alleging that his trial counsel was ineffective for withdrawing a motion to suppress.  The trial court summarily denied the motion and ruled that Defendant’s plea was voluntary.  Defendant appealed.
  The Fourth DCA reversed, concluding that the trial court was required to appoint conflict-free counsel to aid Defendant in preparing his motion to withdraw the plea.  A motion to withdraw a plea is a critical stage of the proceedings, at which a defendant is entitled to appointed counsel.  Defendant and his counsel obviously had an adversarial relationship regarding the motion to suppress, and “[i]f it becomes apparent during a hearing on a motion to withdraw that counsel and the client are taking opposing and thus adversarial positions, it is incumbent on the court to provide the defendant with conflict-free counsel.”  (Citation omitted.)  Walker v. State, __ So.3d __ (Fla. 4th DCA, No. 4D22-349, 4/5/2023), 2023 WL 2777551.



Court did not err when it declined defendant’s requests to consult with standby counsel. [Added 4/10/23]
  After the state rested its case, a criminal Defendant asked to represent himself for the rest of the trial.  The court held a Faretta hearing, found that Defendant satisfied the criteria, and permitted him to represent himself.  The court also asked defense counsel to remain in the courtroom in case Defendant changed his mind.
  During the proceedings Defendant had problems with admissibility of evidence, and with the difference between evidence and argument.  The court asked Defendant several times if he wished to continue representing himself, and each time Defendant declined.  Later in the proceeding Defendant asked the court if he could “call up just one of my lawyers to give me a little help on the side?”  The court responded that Defendant either had a lawyer or he did not.  Defendant was allowed to consult with his counsel about whether to continue representing himself, and Defendant “chose to represent himself ‘of his own free will.’”  Defendant was convicted.
  On appeal Defendant contended that the trial court erred by declining his requests to consult with standby counsel.  Standby counsel is permitted but is not constitutionally required.  There is no right to “hybrid representation.”  The appeals court explained:  “In the end, ‘[a] defendant has no constitutional right to standby counsel . . . and ‘a defendant may not manipulate the proceedings by willy-nilly leaping back and forth between the choices.’  . . .  The defendant cannot prevail on his claim that the trial court erred when it declined to allow him to access standby counsel it was not required to give him.”  (Citations omitted.)  Zagarella v. State, __ So.3d __ (Fla. 4th DCA, No. 4D21-3394, 3/15/2023), 2023 WL 2506453.


Lawyer provided ineffective assistance by misadvising defendant about possible maximum sentence when lawyer failed to realize defendant qualified as habitual felony offender. [Added 3/10/23]
​ Lawyer represented Defendant, who was charged with attempted first-degree murder with a deadly weapon.  The state offered a 15-year sentence plea agreement.  Defendant did not accept it.  At trial Defendant conceded guilt regarding aggravated battery, but argued there was no evidence of intent to support a higher-level offense.  The jury found him guilty of aggravated battery.  The state filed a notice of intent to seek a habitual felony offender (HFO) sentence.  Defendant was sentenced to 30 years as a HFO.
  Defendant filed a Fla.R.Crim.P. 3.850 motion claiming that Lawyer provided ineffective assistance.  Defendant stated that “he rejected the state’s 15-year plea offer because counsel advised him that he likely would be convicted of aggravated battery as a lesser-included offense and would face a maximum sentence of 15 years.”  Lawyer thought Defendant had a “free swing” at trial because the state was offering the maximum sentence for aggravated battery.  Lawyer admitted that “he failed to realize that [Defendant] qualified as an HFO and therefore could be sentenced up to 30 years for that offense.  [Defendant] and counsel both testified that, in all likelihood, [Defendant] would have accepted the 15-year plea offer if he had known he could be sentenced up to 30 years as an HFO even if he were successful in obtaining a conviction for aggravated battery.”
 The court denied the Rule 3.850 motion, finding that Defendant “failed to establish a reasonable probability that the trial judge would have accepted the plea.”  Defendant appealed.
 The Fourth DCA reversed.  Lawyer’s performance was deficient in that he misadvised Defendant that he could be sentenced to a maximum of 15 years.  As to prejudice from the deficient performance, the appeals court stated that Defendant was required to establish “a reasonable probability that (1) he would have accepted the 15-year plea offer if counsel had properly advised him, (2) the prosecutor would not have withdrawn the offer, (3) the judge would have accepted the plea, and (4) his conviction or sentence, or both, would have been less severe than that which was ultimately imposed.”  In the court’s view, Defendant met these requirements.  Defendant testified that he would have accepted the 15-year offer if he had been properly advised, “an objective assessment of the circumstances at the time of the plea offer does not reveal any particular fact that would have caused the prosecutor to withdraw the offer or the judge not to accept the plea,” and there was no dispute that the sentence would have been less severe if Defendant had accepted the plea offer.”  Key v. State, __ So.3d __ (Fla. 4th DCA, No. 4D22-1495), 2023 WL 2314831.


Criminal sentence reversed because defendant not offered counsel at sentencing hearing. [Added 2/16/23]
  Criminal Defendant was found to have violated his probation and was sentenced.  Defendant appealed, contending that the trial court erred by (1) not repeating a full Faretta inquiry at first appearance on the violation of probation allegations, the final hearing, and the immediately subsequent sentencing hearing; and (2) not offering counsel at the sentencing hearing.  Defendant appealed.
  The Fourth DCA affirmed as to the first contention but reversed on the second.  It was error not to offer counsel to Defendant at the sentencing hearing, and the error was not harmless.  The court vacated the sentence and remanded for “a new sentencing hearing which includes an offer of counsel at the outset and, if necessary, a revisiting of Faretta.”  Barrett v. State, __ So.3d __ (Fla. 4th DCA, No. 4D21-1693, 2/8/2023), 2023 WL 1807731.


Appellate counsel ineffective for failing to argue that defendant was convicted of uncharged offense. [Added 8/12/22]
  Convicted criminal Defendant filed a petition alleging ineffective assistance of appellate counsel.  Defendant claimed that counsel was ineffective in failing to argue, as fundamental error, that Defendant had been convicted of an uncharged offense.  Agreeing, the Fifth DCA reversed and remanded.
  Defendant was charged with robbery with a firearm.  The jury verdict form listed robbery with a deadly weapon as a lesser included offense of robbery with a firearm.  The court’s instructions to the jury were consistent with the form.  Defendant’s trial counsel did not object.  Defendant was convicted “of the purported lesser included offense of robbery with a deadly weapon.”  His conviction was affirmed on direct appeal.
  In reversing, the Fifth DCA stated:  “In Davis v. State, 235 So.3d 320, 322 (Fla. 2018), our supreme court expressly held that robbery with a deadly weapon was not a lesser included offense of robbery with a firearm and that it was error for the trial court to instruct the jury as such.”  Duffy v. State, __ So.3d __ (Fla. 5th DCA, No. 5D22-691, 7/8/2022), 2022 WL 2541448.


Prosecution’s comments regarding defendant’s country of origin and its legal system were improper and condemned by Supreme Court, but did not rise to level of fundamental error. [Added 7/14/22]
  Defendant Ritchie was tried and convicted of murder.  He appealed, contending that he was entitled to a new penalty phase due to errors that included “the cumulative impact of several improper comments by the prosecutor during the penalty phase closing argument – only one of which trial counsel objected to.”  The Supreme Court disagreed and affirmed.
  The prosecutor referenced the fact that Ritchie was from Jamaica and emigrated to the United States.  Ritchie’s proposed nonstatutory mitigation “put his background at issue, including his experiences in Jamaica and his emigration.”  But the Court noted “that Ritchie was not on trial in Jamaica” and so it was “improper for the prosecutor to comment about the Jamaican legal system or to compare it to the legal system in the United States.”  (Emphasis by Court.)  The Court found “troubling” another comment comparing Ritchie’s life in jail awaiting trial to what his life would be like if he was on trial in Jamaica.  The Court agreed with Ritchie’s contention “that such irrelevant comparisons served no purpose except to imply that he had ‘bit the hand that fed him.’”  (Citation omitted.)
  The Court criticized the prosecutor’s comments, stating:  “To the extent the prosecutor’s rhetoric could be taken as anti-immigrant, we condemn such rhetoric in the strongest possible terms; it has no place in our courts.”  Nevertheless, the comments did not rise to the level of fundamental error:  “On the record before us in this substantially aggravated and minimally mitigated case involving the rape and murder of a nine-year-old child, we cannot say that, but for the cumulative impact of the improper prosecutorial comments, the jury could not have recommended a sentence of death.  Thus, we cannot conclude that cumulative fundamental error occurred.”  Ritchie v. State, __ So.3d __ (Fla., No. SC20-1422, 6/9/2022), 2022 WL 2071090.


Second DCA admonishes lawyers concerning filing Anders briefs in compliance with U.S. Supreme Court procedure. [Added 6/17/22]
​ Lawyer represented a convicted criminal defendant.  Lawyer filed a “no merits” brief pursuant to Anders v. California, 386 U.S. 738 (1967), and In re Anders Briefs, 581 So.2d 149 (Fla. 1991), “asserting that after a thorough review of the record he had found no issues of arguable merit in this appeal from [defendant’s] judgment and sentence for aggravated stalking.”  The Second DCA affirmed the conviction, but wrote an opinion “to address a reoccurring concern in Anders cases before this court.”
  The court found that the record was incomplete; the record that had been transmitted to the appeals court failed to include nine transcripts.  The court ordered the record supplemented and conducted an examination of the complete record.  The court noted, however, that “the initial absence of transcripts, including the transcript from the hearing at which [defendant] was first permitted to represent himself, causes us to question whether and how counsel could have asserted that the trial record had been conscientiously examined and that no issues of arguable merit had been found.  . . .  That is, in the absence of a complete record, it is apparent that counsel could not have complied with the procedures set forth by the U.S. Supreme Court.”  (Citation omitted.)
  The court concluded by warning counsel:  “We thus remind appellate counsel of the procedural and ethical requirements involved in the filing of a brief pursuant to Anders and admonish against filing a no merits brief when the record on appeal is incomplete.”  LoRusso v. State, __ So.3d __ (Fla. 2d DCA, No. 2D21-1325, 5/13/2022), 2022 WL 1508847.


Order modifying probation is reversed due to court’s failure to conduct adequate Faretta hearing. [Added 5/18/22]
  White was charged with violating his probation.  White appeared pro se at the hearing.  “The trial court asked White if he wanted counsel, and White responded only that he ‘was thinking [he] was just going to get [his probation] reinstated.’  The State then made White an offer, and after some discussion, the court offered to appoint counsel if White ‘want[ed] to talk to a lawyer about [his] options.’”  White declined counsel and admitted the alleged violations.  The court modified his probation.  White appealed.
  The Second DCA reversed.  The right to counsel applies at probation violation hearings.  Unless there has been a knowing and intelligent waiver, counsel must be afforded to the probationer.  The record failed to establish that White knowingly and intelligently waived his right to counsel.  “Although the trial court asked White if he wanted counsel to be appointed, it did not conduct a Faretta hearing.  Accordingly, we reverse the order modifying White's probation and remand for further proceedings consistent with this opinion.”  White v. State, __ So.3d __ (Fla. 2d DCA, No. 2D21-1211, 4/6/2022), 2022 WL  1019581.


On own motion, Supreme Court amends rules regarding appointment of postconviction counsel and dismissal of postconviction proceedings. [Added 5/16/22]
  On its own motion the Florida Supreme Court amended rules regarding appointment of postconviction counsel and dismissal of postconviction proceedings “to reflect, among other things, that a capital defendant may waive pending postconviction proceedings but not postconviction counsel, and that a subsequent postconviction motion is allowable to raise certain specified claims after a waiver of pending postconviction proceedings.”  The amendments were effective immediately upon issuance of the opinion.
  Regarding the amendments to Fla.R.Crim.P. 3.8561, the Court explained:  “First, the amendment to rule 3.851(b)(6) makes clear that the only basis for a capital defendant to seek to discharge postconviction counsel in state court is pursuant to statute due to an actual conflict of interest, which, if granted, will result in the appointment of conflict-free counsel.  . . .  Next, the provisions under subdivision (i) are revised to reflect that any waiver is limited to dismissal of postconviction proceedings, and does not include the discharge of counsel, as indicated in the title to the subdivision.”
  As to the amendment of Fla.R.App.P. 9.412, the Court stated:  “[S]ubdivision (d) is amended to expressly provide that review of the dismissal of the postconviction proceedings does not apply if the appeal was waived before the circuit court, and to remove any reference to the ‘discharge’ or ‘discharging’ of counsel.”  In re: Amendments to Florida Rule of Criminal Procedure 3.851 and Florida Rule of Appellate Procedure 9.142, __ So.3d __ (Fla., No. SC21-537, 5/5/2022), 2022 WL 1420835.


Second DCA rules trial counsel was ineffective for failing to strike biased juror. [Added 2/28/22]
  Convicted Criminal Defendant moved for postconviction relief pursuant to Fla.R.Crim.P. 3.850.  One of his claims was that trial counsel was ineffective for failing to strike a biased juror.  The postconviction court denied the claim, but on appeal the Second DCA reversed.
  During voir dire one prospective juror (Grimm) was asked if it would bother her if Defendant did not testify, and Grimm replied that not testifying “seems like it’s an admission of guilt by not speaking.”  Grimm was not challenged for cause.  Defendant was convicted.
  At the postconviction evidentiary hearing, neither defense counsel nor co-counsel testified that it was a strategic decision to keep Grimm on the jury.  “There was also no testimony that either attorney explained to [Defendant] that the defense could seek to strike Grimm for cause based on her statement that ‘[i]t always seems like it's an admission of guilt by not speaking.’”
  The Second DCA determined that trial counsel was deficient for failing to strike Grimm for cause.  As to prejudice, “when ‘a postconviction motion alleges that trial counsel was ineffective for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased.’”  (Citations omitted.)  Defendant satisfied this requirement.  “Grimm made a statement expressing her belief that when a defendant does not testify ‘[i]t always seems like it’s an admission of guilt.’  Grimm was not rehabilitated, and [Defendant] did not testify at trial.  Under these circumstances, the record plainly shows that Grimm was biased against [Defendant] for exercising his right to remain silent.”  Miller v. State, __ So.3d __ (Fla. 2d DCA, No. 2D19-3355, 1/19/2022), 2022 WL 162979.


Conviction affirmed despite improper prosecutorial statements because defense counsel invited error. [Added 1/31/22]
  Criminal Defendant was convicted of capital sexual battery.  He appealed, contending inter alia that the prosecutor made improper comments during closing argument.  The comments “mischaracterized the burden of proof and sought to shift the burden to” Defendant.  Defense counsel did not make a contemporaneous objection, but for tactical reasons waited to object until after the jury had retired to deliberate.  The trial court offered to bring the jury back for a curative instruction, but defense counsel declined because counsel did not want to highlight the remark.
  The First DCA agreed that the prosecutor’s remarks were improper, but affirmed.  “Although the prosecutor’s statements were improper, Smith has no right to relief because he invited the error.  ‘Under the invited-error doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal.’  Anderson v. State, 93 So.3d 1201, 1206 (Fla. 1st DCA 2012) (quoting Ashley v. State, 642 So.2d 837, 838 (Fla. 3d DCA 1994)); see also Sullivan v. State, 303 So. 632, 635 (Fla. 1974) (‘[W]here the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.’).  Because the trial court offered Smith a curative instruction in response to the State’s mischaracterization of the burden of proof and Smith refused, that error ‘was invited and [does] not warrant reversal.’  See Sullivan, 303 So. 2d at 365.”  Smith v. State, __ So.3d __ (Fla. 1st DCA, No. 1D20-106, 1/12/2022), 2022 WL 109116.


Appellate counsel ineffective for failing to file rule 3.800(b)(2) motion to challenge costs not orally pronounced at hearing. [Added 12/9/21]
  Criminal Defendant was convicted and appealed.  While the appeal was pending the trial court entered a costs orders.  The appeal raised no costs issues, and no Fla.R.Crim.P. 3.800(b)(2) motion was filed.  Defendant filed a petition claiming ineffective assistance of appellate counsel for failing to challenge $1382 in discretionary costs and $7306 in defense costs that were not orally pronounced.  Defendant also claimed counsel was ineffective for failing to file a rule 3.800(b)(2) motion challenging a 50-year mandatory minimum sentence.
  The Fourth DCA agreed as to the costs, but not as to the sentence.  The costs were not orally pronounced and Defendant had no opportunity to contest them.  The sentence, however, was orally pronounced several times during the hearing.  Walding v. State, __ So.3d __ (Fla. 4th DCA, No. 4D21-820, 11/3/2021), 2021 WL 5098792.


Exercising conflict jurisdiction, Supreme Court rules that F.S. 924.051(3) precludes appellate review of unpreserved claims of ineffective assistance on direct appeal, absent allegation of fundamental error. [Added 11/29/21]
​ Exercising its conflict jurisdiction, the Florida Supreme Court examined whether appellate courts may address the merits of unpreserved claims of ineffective assistance of trial counsel on direct appeal, absent an allegation of fundamental error.  On this topic, the case of Steiger v. State, 301 So.3d 485 (Fla. 1st DCA 2020), expressly and directly conflicted with Howard v. State, 288 So.3d 1239 (Fla. 2d DCA 2020), and Kruse v. State, 222 So.3d 13 (Fla. 4th DCA 2017).
  The Supreme Court agreed with the First District in Steiger “that, based on the plain language of section 924.051(3), unpreserved claims of ineffective assistance of counsel cannot be raised or result in reversal on direct appeal because the statute requires the more demanding showing of fundamental error.”
  In this case, the Court noted that “Steiger concedes that his ineffective assistance of counsel claims were not properly preserved, and he does not allege that fundamental error occurred at trial. The plain language of section 924.051(3) therefore precludes review of his claims of ineffective assistance of trial counsel on direct appeal.”  The Court pointed out that “[t]his conclusion flows from the fact that ineffective assistance of trial counsel claims under Strickland [v. Washington, 466 U.S. 668 (1984)] afford criminal defendants an easier path to relief than claims of fundamental error.”
  The Court concluded:  “Based on the plain text of section 924.051(3), an unpreserved error may only be raised and result in reversal on direct appeal where the error is fundamental.  Because a showing of fundamental error is not required to prevail on a claim of ineffective assistance of trial counsel under Strickland, such an unpreserved claim may not be raised or result in reversal on direct appeal.  Rather, to raise and prevail on any unpreserved claim of error on direct appeal, the defendant must demonstrate fundamental error.  Accordingly, we approve the First District’s decision in Steiger to the extent it is consistent, recede from Monroe [v. State, 191 So.3d 395 (Fla. 2016)] as clearly erroneous, to the extent that it conflicts with this opinion, and disapprove of the district courts’ decisions in Howard and Kruse to the extent those decisions failed to apply the fundamental-error limitation of section 924.051(3) in reviewing and granting relief based on unpreserved claims of ineffective assistance of trial counsel on direct appeal.”  Steiger v. State, __ So.3d __ (Fla., No. SC20-1404, 11/10/2021), 2021 WL 5226296.



Second DCA reverses criminal conviction on direct appeal due to ineffective assistance apparent on face of record. [Added 11/28/21]
  Defendant was convicted of capital sexual battery.  On appeal he contended that his trial counsel provided him with ineffective assistance that is apparent on the face of the record and that the trial contained fundamental error.
  The Second DCA reversed the conviction and remanded for new trial. The court reviewing the ineffective assistance that was apparent on the face of the record.  As to one instance, “[c]ounsel’s failure to move for a mistrial after two witnesses successively referred to the same uncharged collateral crime constituted deficient performance.”  A second instance occurred when counsel failed to object to prosecution comments on Defendant’s prearrest silence and made matters worse when he “highlighted the improper comment in closing argument.”  A third instance was counsel’s failure to object to child hearsay.
  “In sum, [Defendant’s] claims of ineffective assistance on the face of the record are individually substantial and collectively warrant reversal for a new trial because the deficiencies in counsel's performance have ‘so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.’”  (Citations omitted.)  Further, the court agreed that “the cumulative effect of several errors – the evidentiary errors underlying his ineffective assistance claims as well as two other errors – warrants a new trial.”  Rodriguez-Olivera v. State, __ So. 3d __ (Fla. 2d DCA, Nos. 2D18-706, 2D20-296, 10/13/2021), 2021 WL 4760137.


Noting “pattern of trial counsel errors,” Fifth DCA reverses denial of convicted criminal defendant’s motion for postconviction relief and remands for new trial. [Added 11/19/21]
  Convicted Criminal Defendant filed a motion for postconviction relief under Fla.R.Crim.P. 3.850 alleging ineffective assistance of counsel.  The postconviction court denied the motion.  Defendant appealed.
  The Fifth DCA reversed based on “a pattern of trial counsel errors traversing the proceedings from pretrial to closing argument” in Defendant’s sexual battery case.  “Most notable among the deficient acts was trial counsel’s failure to call an available expert witness to challenge the State’s otherwise unrefuted medical expert testimony concerning the victim’s injuries.  The failure to call such a witness, which alone constituted deficient performance under the facts of this case, was exacerbated by trial counsel’s failure to object to both improper bolstering testimony from the State’s medical expert that her abuse report had been peer reviewed by a certified child abuse pediatrician and the prosecutor’s closing argument highlighting this bolstering testimony.”  Wilson v. State, __ So.3d __ (Fla. 5th DCA, No. 5D20-1653, 10/8/2021), 2021 WL 4692592.


Convicted criminal defendant entitled to effective assistance of counsel during resentencing hearing that resulted from successful postconviction motion. [Added 11/3/21]
​ Convicted Criminal Defendant filed a motion for postconviction relief, which was denied after an evidentiary hearing.  The denial was affirmed on appeal.  Defendant then filed a motion to correct illegal sentence, which was granted.  Defendant was resentenced and did not appeal.  He did, however, file a motion for postconviction relief alleging ineffective assistance of counsel at the resentencing hearing.  The postconviction court dismissed the motion because a defendant has no constitutional right to effective collateral counsel.  Defendant appealed.
  The Second DCA reversed, noting that “‘[i]neffective assistance of postconviction counsel is not a cognizable claim in Florida, because there is no constitutional entitlement to the appointment of postconviction counsel.’”  (Citation omitted; emphasis by court.)  In contrast, however, the Sixth Amendment to the U.S. Constitution guarantees the right to effective assistance of counsel at all “critical stages” of a criminal prosecution.  These critical stages include trial, sentencing, and direct appeal, regardless of “‘whether the sentence is the immediate result of adjudication of guilt or, as here, the sentence is the result of an order directing the trial court to resentence the defendant.’”  (Citation omitted.)
  Consequently, the Second DCA concluded:  “[T]he general prohibition on claims of ineffective assistance of postconviction counsel is not applicable to [Defendant’s] situation.  Counsel who represents a defendant at resentencing following a successful postconviction motion is not ‘collateral counsel’ and is subject to the same constitutional strictures as trial counsel.  Consequently, [Defendant] has raised a cognizable claim for postconviction relief, and the postconviction court erred by dismissing the motion on this ground.”  Hanna v. State, __ So.3d __ (Fla. 2d DCA, No. 2D20-2945, 9/29/2021), 2021 WL 4447028.


Convicted defendant entitled to hearing on claim that trial counsel was ineffective for not moving to disqualify judge. [Added 9/17/21]
​ Criminal Defendant was charged with sexual battery.  He indicated that he would raise an involuntary intoxication defense at trial.  The prosecution filed a notice of intent to offer evidence regarding a similar incident that involved his step-daughter.  The court ruled that the similar incident evidence could not be admitted in the case-in-chief but might be admissible as rebuttal evidence if Defendant actually raised the intoxication defense.
  Defendant testified at the trial.  After direct examination, the judge excused the jury and asked the prosecutor if she planned to cross-examine Defendant about the similar incident.  The judge stated that “it was ‘clear to [the judge]’ that [Defendant] had ‘put his character at issue with respect to prior crimes related to sexual assaults on other people’ by testifying that he was ‘not that type of person.’  Defense counsel and the judge proceeded to argue the issue; the prosecutor spoke only when the judge prompted her for additional quotes from [Defendant]’s testimony.  The judge ultimately ruled that [Defendant]’s testimony had opened the door to cross-examination about the” similar incident.  Further, the judge allowed the state to call the step-daughter as a rebuttal witness.
  Defendant was convicted.  He filed a motion for postconviction relief, alleging in part that his trial counsel rendered ineffective assistance by failing to move to disqualify the judge.  The claim was summarily denied.  Defendant appealed.
  The Fourth DCA reversed and remanded for an evidentiary hearing.  “[Defendant] alleged that, instead of requiring the prosecutor to argue that his testimony had opened the door to cross-examination about the incident involving his step-daughter, the judge took it upon himself to raise the issue and then made the argument on the prosecutor’s behalf.  The record does not refute [Defendant]’s claim that the judge’s actions created a sufficient concern about his impartiality that counsel should have moved to disqualify him.  We recognize that the prosecutor had argued before trial that evidence about the incident would be admissible, but the prosecutor did not raise the issue at trial, and the judge raised a different argument than the prosecutor had made before trial.”  Cabriano v. State, __ So.3d __ (Fla. 4th DCA, No. 4D19-3608), 2021 WL 3641434.


Supreme Court denies claim of ineffective assistance based on alleged “disarray and division” among defense lawyers. [Added 8/30/21]
  Criminal Defendant was convicted of murder.  He filed a motion for postconviction relief under Fla.R.Crim.P. 3.851, which was denied.  Defendant appealed to the Supreme Court, contending inter alia that he had been provided with ineffective assistance of counsel because of “disarray and division among his lawyers.”
  The Supreme Court affirmed.  Defendant’s “generalized claims regarding the trial team’s internal division fail to satisfy the deficient performance standard under Strickland [v. Washington, 466 U.S. 668 (1984)] because he fails to link that general discord to any specific acts of deficient performance that occurred during the thirty-six months his case was pending.”  The only “specific allegation of deficient performance” related to the alleged failure to properly investigate a witness; however, the state’s failure to disclose that witness on its witness list “was the primary reason that trial counsel was surprised” by the witness’s testimony.  Hilton v. State, __ So.3d __ (Fla., Nos. SC19-373, SC19-1766), 2021 WL 3779154.


Second DCA finds ineffective counsel on face of the record and reverses conviction. [Added 8/18/21]
  Defendant was convicted of aggravated battery with a deadly weapon.  He appealed, contending that trial counsel provided ineffective assistance by failing to request a jury instruction on the justifiable use of nondeadly force.  The Second DCA agreed and reversed.
  Ineffective assistance claims ordinarily are resolved in postconviction relief proceedings, but on rare occasions an appeals court will find ineffective assistance on the face of the record “when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.”  (Citations omitted.)  This was such a case.
  Defendant’s theory of the case was justifiable defense of his cousin, who was being attacked.  In these cases, typically standard jury instructions for justifiable use of deadly and nondeadly force are given as applicable.  Here, however, defense counsel did not request an instruction on the use of nondeadly force.  The jury was instructed only on the use of deadly force.
  The appeals court pointed out that the facts proven at trial did not, as a matter of law, constitute deadly force, “and the question of whether the force used was deadly or nondeadly was then a question for the jury.”  Consequently, defense counsel should have requested – but did not – an instruction on the justifiable use of nondeadly force.  “On the face of this record it is clear that [Defendant] was entitled to this instruction and that the failure to request it prejudiced him.”  Claudio-Martinez v. State, __ So.3d __ (Fla. 2d DCA, No. 2D19-3639, 7/30/2021), 2021 WL 3233526.


Order denying postconviction relief reversed due to denial of defendant’s request for counsel at evidentiary hearing. [Added 8/16/21]
  Convicted criminal Defendant filed a motion for postconviction relief under Fla.R.Crim.P. 3.850.  The trial court issued an order setting an evidentiary hearing and appointing counsel (Office of Regional Criminal Conflict Counsel, or “RCCC”) to represent Defendant.  At the hearing, however, appointed counsel did not appear.  Defendant asked the court to appoint the Public Defender because he was not able to “defend himself.”  The court denied the request and held the hearing, after which it denied Defendant’s postconviction motion.
  Defendant appealed, contending that the court erred in not providing counsel for him at the evidentiary hearing.  Agreeing, the Fifth DCA reversed and remanded for a new hearing.
  The court observed that it was a “mystery” why RCCC did not appear at the hearing.  The court went on to point out that, “although there is no absolute right to counsel in post-conviction relief proceedings, the [c]ourt before which the proceedings are pending must determine the need for counsel and resolve any doubts in favor of the appointment of counsel for the defendant.”  Graham v. State, 372 So.2d 1363, 1365 (Fla. 1979).”  Here, based on the appellate court’s review of the hearing transcript, “it certainly appears that [Defendant] was unprepared, clearly challenged, and possibly unable to represent himself without the assistance of counsel.”  Accordingly, the court concluded:  “Given the applicable law and considering [Defendant]’s lack of sophistication, limited education, the potentially complex evidentiary hearing which necessitated subpoenaing witnesses, we find that the postconviction court abused its discretion when it denied [Defendant]’s request for counsel made at the outset of the evidentiary hearing.”  Jones v. State, __ So.3d __ (Fla. 5th DCA, No. 5D20-1459, 7/30/2021), 2021 WL 3233590.


Third DCA affirms conviction, rejecting defendant's claim that court erred by not treating request to discharge attorney as unequivocal request to represent himself. [Added 6/25/21]
  Criminal defendant Deshazior was convicted.  He appealed, contending that the trial court erred by “fail[ing] to treat his request to discharge his attorney as an unequivocal request to represent himself.”  The Third DCA concluded that the record showed otherwise and affirmed.
  The appeals court summarized:  “The portion of the transcript indicating the exchange that took place between Deshazior and the trial court right before voir dire demonstrates that Deshazior’s request was equivocal.  The trial court asked him three times if he wished to represent himself in the proceedings, but Deshazior did not answer that he wanted to represent himself.  The exchange reflects that the defendant was worried about representing himself and proceeding on his own, which is why he never answered the trial court’s question when he was asked whether he wanted to proceed pro se.  Thus, he did not indicate to the trial court unequivocally that he wanted to represent himself.”  Deshazior v. State, __ So.3d __ (Fla. 3d DCA, No. 3D20-325, 6/2/2021), 2021 WL 2212851.


Denial of convicted defendant’s Fla.R.Crim.P. 3.850 motion affirmed because he failed to prove he was prejudiced by equivocal warning about immigration consequences of plea. [Added 6/15/21]
  Criminal Defendant was in this country under DACA status.  He pleaded no contest to tampering with a witness.  His signed written plea agreement, which Defendant testified that he read and understood, stated in part:  “I understand that if I am not a United States citizen, entry of this plea may subject me to deportation by the United States Immigration Service.”  He answered “yes” when asked if he understood that he could be deported or denied citizenship as a result of the plea.
  Defendant later filed a motion for postconviction relief under Fla.R.Crim.P. 3.850 alleging that his trial counsel was ineffective for not explaining the negative immigration consequences of his plea to him.  The trial court denied relief on the ground.  Defendant appealed.
  The Fifth DCA affirmed.  The court first addressed what it “perceive[d] to be the postconviction court’s basis for denying Defendant’s motion, namely, that counsel’s performance was not deficient because he had no affirmative duty to inquire of Defendant whether he was a United States citizen.”  The appeals court concluded that counsel did have a duty to so inquire, citing to Lee v. United States, 137 S.Ct. 1958 (2017) and stating:  “[A] criminal defense attorney representing a client charged with a felony should make a reasonable inquiry as to the immigration or citizenship status of his or her client.  Otherwise, counsel will not be in an adequate position to provide effective guidance or advice to the client regarding the potential immigration consequences of his or her guilty or no contest plea.”
  The court affirmed on a different ground, concluding that Defendant failed to demonstrate prejudice.  There was no dispute that Defendant was given “equivocal warnings about the risk of adverse immigration consequences resulting from his no contest plea.”  Counsel has a duty to give more than equivocal warnings when the adverse immigration consequences are “truly clear,” per Padilla v. Kentucky, 559 U.S. 356 (2010).  But, per the Florida Supreme Court, a plea colloquy can refute an ineffective assistance claim “when the adverse immigration consequences of the plea are not “presumptively mandatory.”  Hernandez v. State, 124 So. 3d 757, 763 (Fla. 2012).
  In this case, Defendant had not shown that the crime of misdemeanor witness tampering was a crime of “moral turpitude,” which triggers “truly clear” deportation consequences under 8 U.S.C. 1227(a)(2)(A)(i).  “Absent the crime of witness tampering in Florida being one involving moral turpitude, Defendant has not shown that his plea to this charge subjected him to virtually automatic deportation and that such presumptive mandatory adverse immigration consequences at the time of his plea were truly clear from the face of the immigration statute.  Accordingly, because the record refutes Defendant’s claim, we affirm the order denying his motion for postconviction relief.”  Ramirez v. State, __ So.3d __ (Fla. 5th DCA, No. 5D20-1824, 5/21/2021), 2021 WL 2020639.


Court that conducted adequate Faretta inquiry when defendant waived right to counsel at hearing did not err by not conducting another Faretta inquiry 3 weeks later before allowing defendant to represent himself at trial. [Added 5/3/21]
 Criminal Defendant was charged with various offenses.  A series of appointed lawyers represented him, but Defendant was dissatisfied with them.  Defendant asked to waive counsel and represent himself at a January 31 hearing on a speedy trial demand and other motions.  After conducting a full Faretta inquiry, the court determined that Defendant’s waiver of the right to counsel was knowing, intelligent, and voluntary and granted his demand for self-representation.  As the court began to conduct jury selection, Defendant changed his mind about representing himself and asked to have his former counsel reappointed.  The court did so.  The appointed lawyer successfully moved for a continuance.
  A few days later, Defendant filed a motion seeking to proceed pro se.  On February 12 hearing on the motion, the court “discharged the appointed attorney without repeating its admonishments on the dangers of self-representation, as it believed there was no need for this in light of the last hearing at which [Defendant] was fully informed of these risks, and there had been no change in circumstances.”  The court granted the motion for self-representation and appointed standby counsel for Defendant.  After rejected the court’s offer of counsel at the beginning of trial, Defendant represented himself and was found guilty.  At the sentencing hearing he again rejected the offer of appointed counsel and was sentenced to life.
  Defendant appealed, contending that he was entitled to a new trial because of the court’s “failure to readvise him of the perils of self-representation when he reasserted his desire to waive his right to counsel at the February 12, 2018 hearing entitles him to a new trial.”  The Third DCA disagreed and affirmed.
  Under Faretta, a waiver of the right to counsel must be made knowingly, intelligently, and voluntarily.  Whether these requirements have been met depends on the circumstances of the case, and “turns on the defendant’s understanding of his choices and the risks of self-representation.”  (Emphasis by court.)  In affirming, the appeals court concluded:  “It is undisputed that the initial waiver on January 31, 2018 was made knowingly, intelligently, and voluntarily, there were no changes in the intervening circumstances between the original waiver of counsel and the renewed waiver on February 12, 2018, and nothing in the record shows that [Defendant’s] brief change of mind in any way affected his understanding of his rights, the charges and possible penalties he was facing, or the risks of self-representation.”  Maps v. State, __ So.3d __ (Fla. 3d DCA, Nos. 3D18-2583 et al., 3/31/2021), 2021 WL 1201459.
​

​Convicted defendant who was serving sentence and was not afforded counsel when called to testify against accomplice not deprived of counsel under Sixth Amendment.  [Added 4/19/21]
  Following a negotiated plea, Parks was serving to 25 years in prison for second-degree murder and other charges.  Parks agreed to testify as a cooperating witness in the trial of his accomplice, Jackson.  Parks was noticed for deposition in Jackson’s case.  At the start of the deposition, Parks requested counsel.  “Jackson’s lawyer and the prosecutor initially agreed to recess the proceedings in order to apprise the trial court of the issue, but, ultimately, moved forward with the deposition.  Parks was reluctant and combative, and repeatedly claimed to have little memory of the events surrounding the homicide.  Although he was furnished with a copy of the plea contract and his sworn statement, he refused to implicate his ‘co-defendant as the shooter.’”
  The State claimed Parks breached his plea agreement.  The trial court agreed, vacated the 25-year sentence, and resentenced Parks to life.  After a successful appeal, on retrial Parks was again found in violation and resentenced to life.  That sentence was affirmed on appeal.  Parks filed a petition for habeas corpus, contending that he was deprived of his Sixth Amendment right to counsel because no counsel was appointed for him during the deposition in Jackson’s case.
  The Third DCA denied the petition.  “Parks contends the deprivation of counsel during the post-plea deposition renders the proceedings presumptively unreliable. Concluding he has failed to demonstrate the deposition constituted both a critical stage in the proceedings and a point at which the denial of counsel ‘affected – and contaminated – the entire proceedings,’ we are not so persuaded.”  The court noted that “by the time he was deposed in Jackson’s case, all pretrial procedures had concluded, his ‘guilt or innocence of the charged crime’ had been decided, ‘his vulnerability to imprisonment’ had been determined, and his attorney had been discharged.”  The court concluded that, “[u]nder r these circumstances, the deposition constituted a pivotal stage in the adversarial proceedings against Jackson, not Parks, and the interests of Parks were closely aligned with those of the State.”  Accordingly, “Parks has failed to establish the deprivation of counsel ‘affected – and contaminated – the entire criminal proceeding.’”  Parks v. State, __ So.3d __ (Fla. 3d DCA, No. 3D20-1418, 3/17/2021), 2021 WL 1009282.


Bench conference prompted by criminal defendant’s testimony as narrative was not critical stage of proceeding at which defendant was required to be present. [Added 2/9/21]
  Criminal Defendant was charged with murder.  Defendant testified in his own defense.  At the end of extensive direct examination, his counsel asked whether there was anything else Defendant wanted to tell the jury.  Defendant then started to explain his position, and the state objected that Defendant was testifying as a narrative rather than in response to questions.  A bench conference was held, at which Defendant was not present.  Defense counsel stated, “Judge, we may or may not have come to that time where I just ask him if there’s anything else that he wants to say because I don’t want to get put in a bind about asking questions.”  The judge asked, “Is it because you’re worried he’s going to commit perjury?,” to which defense counsel responded, “I’m not saying that.”  (Emphasis by court.)  The judge then sustained the narrative objection.
  Defendant was convicted.  On appeal he argued that it was a due process violation to exclude him from the bench conference.  The Fourth DCA disagreed and affirmed.
  “[T]he brief bench conference was not a critical stage of the proceedings in which his absence frustrated the fairness of the proceedings.  The bench conference addressed only the form in which defense counsel could question [Defendant] – specifically, whether it was proper to allow [Defendant] to provide a narrative or whether counsel was required to ask specific questions to elicit testimony.  Because this was a purely legal matter, [Defendant] was not required to be present, as his presence would not have been of any assistance to his counsel.”
   The court rejected Defendant’s contention that the bench conference identified a potential or actual conflict of interest between him and his counsel.  “The court was under no obligation to inquire into whether a conflict existed between [Defendant] and his attorney where there was no indication of any manner of conflict.  As discussed above, defense counsel did not indicate that he was concerned [Defendant] would commit perjury or that he otherwise could not represent him.”  (Emphasis by court.)  Sanders v. State, __ So.3d __ (Fla. 4th DCA, No. 4D19-1974, 12/16/2020), 2020 WL 7382595.


Conviction reversed on direct appeal due to ineffective assistance of counsel apparent on face of record. [Added 11/28/30]
  Defendant was arrested and charged with possession of prescription drugs.  She claimed that the drugs were her grandmothers and that she was carrying them to keep her grandmother from taking too many pills.  Defendant was found guilty.  “Following the guilty verdict but before sentencing, trial counsel informed the court that he had failed to request a jury instruction on the prescription defense because he was unaware that holding a controlled substance as an agent for a person who had a prescription was an affirmative defense to the possession charges.  He requested that the court postpone sentencing, but the court refused and sentenced [Defendant] to concurrent terms of 180 days in jail on each possession charge.”
  Defendant appealed, contending that trial counsel was ineffective for failing to request a jury instruction on the prescription defense.  The Second DCA agreed and reversed.  Defendant’s “sole defense was that she was holding the pills for her ailing grandmother.  By neglecting to request an instruction that was central to [Defendant]’s case, trial counsel deprived her of her only defense.  Hence, it is clear on the face of the record that counsel's performance was deficient and that [Defendant] was prejudiced by his failure to request the prescription defense instruction.”  Maksymowska v. State, __ So.3d __ (Fla. 2d DCA, No. 2D18-4697, 10/30/2020), 2020 WL 6370551.


Denial of postconviction claim of ineffective assistance of counsel affirmed, where ineffective assistance of defendant’s first counsel cured by his second counsel. [Added 10/21/20]
  Criminal Defendant was charged with possession of a firearm by a convicted felon and other charges.  He was represented by a lawyer.  That lawyer withdrew and a second lawyer was appointed.  The state made a plea offer while Defendant was represented by the first lawyer.  After the second lawyer was appointed, the state made the same offer.  Defendant accepted the offer.  He was sentenced to 30 years as a habitual offender.
  Defendant filed a Fla.R.Crim.P. 3.850 motion for postconviction relief, claiming that both of his lawyers failed to advise him that he was subject to habitual offender sentencing.  Defendant’s second lawyer testified at the evidentiary hearing that he advised Defendant of the habitual offender issue.  The postconviction court denied the motion.  Defendant appealed.
  The Fourth DCA affirmed.  Regardless of whether Defendant was advised of the habitual offender sentencing issue by his first lawyer, “he was advised of the consequences when the same plea offer was extended the second time.  Any ineffective assistance of the first attorney was cured by the effective assistance of the second attorney.”  (Emphasis added.)  The appellate court analogized this situation to cases where a trial court’s plea colloquy cures misadvice of trial counsel.  Alexander v. State, __ So.3d __ (Fla. 4th DCA, No. 4D19-3588, 9/16/2020), 2020 WL 5541717.


First DCA declines to consider ineffective assistance claim on direct appeal based on alleged errors that were not preserved. [Added 9/22/20]
​ Criminal Defendant was convicted of second-degree murder.  On direct appeal he alleged that his trial counsel was ineffective in 4 respects.  None of the errors was preserved below, and Defendant did not assert fundamental error.  The First DCA declined to consider Defendant’s ineffective assistance claims.
  Agreeing with Judge Winokur’s comments in his concurring opinion in Latson v. State, 193 So.3d 1070, 1074 (Fla. 1st DCA 2016), the appeals court stated that, “an appellate court should not allow an appellant to avoid application of the fundamental error standard by asserting that his trial counsel’s ‘failure to raise issues constitutes ineffective assistance, which entails a different standard that could provide an easier path to reversal, and which deprives trial counsel of the opportunity to defend themselves against allegations of unprofessional conduct.’”  Steiger v. State, __ So.3d __ (Fla. 1st DCA, No. 1D19-3217, 8/25/2020), 2020 WL 5001827.


Supreme Court affirms denial of a claim of ineffective assistance based on counsel’s failure to challenge biased juror. [Added 7/10/20]
  Criminal Defendant was convicted of kidnapping, robbery, and first-degree murder.  He moved for postconviction relief on the ground that trial counsel was ineffective for failing to challenge a juror who indicated that he was biased against persons believed to be homosexual.  The postconviction court summarily denied the claim, and Defendant appealed.  The Florida Supreme Court concluded that the juror was actually biased against Defendant.  Because the ineffective assistance claim was facially sufficient, the Court reversed the summary denial and remanded for an evidentiary hearing.
  The postconviction court held a hearing at which counsel testified to a strategic reason for leaving the juror on the panel – specifically, there was a strong case for guilt and counsel believed that the juror would be good for the defense at the penalty phase.  The postconviction court then rejected Defendant’s ineffective assistance claim.  Defendant again appealed to the Florida Supreme Court.
  The Supreme Court affirmed.  “We have previously recognized that an attorney’s representation of his client’s interests in a criminal case may sometimes include a determination that, although the juror is biased against the defense in some sense, overall, the juror is one whose participation may benefit the defendant’s personal goals in the case.”  That was the situation in this case.  Counsel’s testimony “was sufficient to support the postconviction court’s finding that [counsel] had a strategic basis for not challenging the juror in question, and his testimony does not contradict the record as to the salient points driving that finding.”  Further, the Court concluded that counsel’s strategy “was not objectively unreasonable from the perspective of a defense attorney, whose role is to protect his or her client’s personal interests in the case within the bounds of the rules of professional conduct.  [Counsel’s] belief that the juror in question would serve [Defendant’s] personal interests in the trial was objectively reasonable.”  Patrick v. State, __ So.3d __ (Fla., No. 19-140, 6/4/2020), 2020 WL 2961996.


Second DCA reverses conviction on direct appeal due to ineffective counsel on face of record. [Added 6/17/20]
  Police approached Defendant, who was sitting in a park after dark, and told him he was in violation of park rules.  Defendant was arrested.  A search of his backpack revealed a controlled substance, fentanyl.  He was convicted of one count of possessing a controlled substance.  Defendant appealed, contending that trial counsel was ineffective for failing to move to suppress the fentanyl found during a search that was incident to an illegal arrest.
  The Second DCA reversed.  The arrest was illegal.  Defendant was arrested for violation of park rules, “which was punishable by a fine up to $500.00 for a third violation.  In other words, it was not an arrestable offense.”  The court explained:  “An arrest incident to a violation of an ordinance which authorizes only the issuance of a citation or summons and complaint for civil infractions, is a violation of the Fourth Amendment and article I, section 12 of the Florida Constitution.”  (Citations omitted.)  Noting that there apparently was no strategic reason for not moving to suppress the evidence, the appeals court concluded that “on the face of this record trial counsel’s neglect in failing to file a motion to suppress amounts to deficient performance.”  Prejudice was present because the illegally seized fentanyl was the only evidence of guilt.  Booker v. State, __ So.3d __ (Fla. 2d DCA, No. 2D18-3063, 4/29/2020), 2020 WL 2048030.


First DCA affirms conviction, rejecting argument that criminal defense counsel was ineffective as result of breakdown in attorney-client relationship engineered by defendant. [Added 5/22/20]
  Criminal Defendant was charged with serious crimes.  A public defender was appointed to represent him.  Defendant expressed dissatisfaction with counsel and requested a Nelson hearing.  Instead of a hearing, the public defender’s office was permitted to withdraw and was replaced by regional conflict counsel.  Several continuances were requested and granted.  Defendant sought a Nelson hearing, alleging that regional counsel, Thompson, was providing inadequate representation and had a conflict with Defendant.  The court held a hearing and denied the motion.  Two months later Defendant sought another Nelson hearing.  The court denied the motion, but held a Faretta hearing and permitted Defendant to represent himself, with Thompson as standby counsel.
  Defendant continued to complain about Thompson’s representation of him.  As trial was starting, Thompson reported to the court that he had been threatened by Defendant.  Thompson stated that his supervisor and he had determined that Thompson should withdraw.  The court responded by pointing out that Defendant was entitled to counsel but not to decide who would represent him.  Defendant moved for a continuance.  The court denied both Thompson’s motion to withdraw and Defendant’s motion for continuance.
  Defendant was convicted.  He appealed, contending that he was denied the right to effective assistance of counsel when the court rejected Thompson’s motion to withdraw. The First DCA summarized Defendant’s argument:  “The substance of [Defendant]’s argument is that the trial court ruled on counsel’s motion to withdraw based on its belief that [Defendant] was ‘playing games,’ when it should have evaluated counsel’s irreconcilable differences with [Defendant].  By doing so, according to Appellant, the court denied him effective assistance of counsel. Specifically, Appellant argues that he was denied effective assistance of counsel due to the trial court’s refusal to permit his appointed counsel to withdraw, despite counsel’s representation that he and his office believed he should withdraw because of Appellant’s threats leveled against him . . .”
  The appeals court rejected Defendant’s contention and affirmed.  “We disagree with [Defendant]’s legal premise that defense counsel is inevitably ineffective when a rift forms in the attorney-client relationship – in this case, caused by the defendant’s own behavior – forcing the attorney to cry foul and request permission to withdraw.  Here, the record proves that the trial court evaluated Robert Thompson’s representation of [Defendant] from every conceivable angle and found it to be constitutionally effective.  The court’s decision not to permit Mr. Thompson to withdraw was well within the trial court’s broad discretion and did not infringe on [Defendant]’s constitutional right to effective assistance of counsel.”  Beall v. State, __ So.3d __ (Fla. 1st DCA, No. 1D19-57, 4/15/2020), 2020 WL 1873221.


Court erred in granting postconviction relief to defendant on ground not raised by defendant in Fla.R.Crim.P. 3.850 motion. [Added 4/28/20]
  Convicted Criminal Defendant petitioned for postconviction relief pursuant to Fla.R.Crim.P. 3.850 on six grounds.  The court ordered an evidentiary hearing on ground two, which alleged that counsel misadvised Defendant on the effect of a prison release reoffender sentence.  At the hearing, the court sua sponte raised the issue of Defendant’s competence.  The court then granted postconviction relief on the basis that counsel had been ineffective for not raising the competency issue before the trial court.
  The State appealed, contending that the court had “erred in granting postconviction relief on a ground not raised by Defendant and not allowing it an opportunity to respond to the competency issue.”  The Fourth DCA agreed and reversed.  “A trial court can only properly grant postconviction relief on a ground raised by the defendant.”  Here, Defendant has not raised the competency issue in his rule 3.850 motion.
  (Alternatively, the appeals court agreed with the State that, even if the 3.850 motion had included the competency issue, trial counsel had not been ineffective under the circumstances.)  State v. Dixon, __ So.3d __ (Fla. 4th DCA, No. 4D18-3694, 3/11/2020), 2020 WL 1163098.


Defense counsel not ineffective for failing to file motion that was meritless under existing law, even though Supreme Court had accepted review of controlling case. [Added 4/13/20]
  Criminal Defendant was convicted and filed a motion for postconviction relief alleging, inter alia, that trial counsel was ineffective for failing to timely file a motion to suppress certain evidence.  On appeal Defendant argued that, although the motion would not have been granted under the law in effect at the time, the Supreme Court later quashed the controlling case and counsel should have filed a motion to preserve the issue.
  The Supreme Court rejected Defendant’s argument.  “We affirm the court’s denial of this claim because ‘counsel cannot be held ineffective for failing to anticipate changes in the law,’ Cherry v. State, 781 So.2d 1040, 1053 (Fla. 2000), and ‘cannot be deficient for failing to file a meritless motion,’ Patrick v. State, 246 So.3d 253, 260 (Fla. 2018).  [Defendant] considered this, for he alleged in the alternative that counsel should have filed a motion for new trial as soon as this Court accepted review of Smallwood I [the controlling case].  However, Florida Rule of Criminal Procedure 3.600(a) provides that a court will grant a new trial ‘only if: (1) the jurors decided the verdict by lot; (2) the verdict is contrary to law or the weight of the evidence; or (3) new and material evidence . . . has been discovered.’  The grounds [Defendant] proposed for counsel to file a motion for new trial – that there was a potential for existing case law to be overturned – are not a viable basis for a trial court to grant a new trial under rule 3.600(a).  A motion for new trial would have been denied on the grounds alleged, and defense counsel was therefore not ineffective for failing to file such a motion.  See Johnston v. State, 63 So.3d 730, 739 (Fla. 2011).”  Smith v. State, __ So.3d __ (Fla., No. SC18-42, 3/5/2020), 2020 WL 1057243.


Appellate counsel was not ineffective for failing to present novel legal argument on direct appeal, per Supreme Court. [Added 4/7/20]
  Criminal Defendant convicted of armed robbery and murder and sentenced to death.  Defendant was represented on by appellate counsel in his direct appeal.  After the conviction was affirmed, Defendant sought post-conviction relief.  He petitioned the Florida Supreme Court for a writ of habeas corpus, alleging ineffective assistance on the part of appellate counsel.
  One of his claims was that counsel was ineffective “by failing to argue on direct appeal that a grand jury must make certain findings before the State can seek the death penalty.  Another was that counsel was ineffective “by failing to argue on direct appeal that the trial court was bound to consider [Defendant’s] sentencing with a ‘presumption of life’ – an espoused variant on the presumption of innocence.”
  The Florida Supreme Court affirmed, rejecting these claims.  These “novel arguments” have never been established as meritorious under Florida law, and so appellate counsel was not ineffective for failing to raise them on direct appeal.  Sanchez-Torres v. State, __ So.3d __ (Fla., No. SC19-211, 3/12/2020), 2020 WL 1173750.


Supreme Court determines that during Faretta inquiry trial judge need not ask specifically ask about defendant’s age, experience, and understanding of criminal procedure. [Added 12/30/19]
  In affirming a criminal defendant’s conviction, the First DCA determined that the current version of Fla.R.Crim.P. 3.111(d)(3) does not require a trial court to “ask any specific questions” when conducting a Faretta inquiry.  Although questions about the defendant’s age, experience, or education “may be relevant” when determining a defendant’s competence for purposes of self-representation, the appeals court stated that Faretta “only requires a trial court to find both ‘that the defendant is competent to waive counsel’ and ‘that the defendant understands its advice regarding the dangers and disadvantages of self-representation.’”  Hooks v. State, 236 So.3d 1122, 1127 (Fla. 1st DCA 2017).
  Based on certain language in Aguirre-Jarquin v. State, 9 So.3d 593, 602 (Fla. 2009), and McGirth v. State, 209 So. 3d 1146, 1157 (Fla. 2017), however, the First DCA certified the following question to the Supreme Court:  “Is a Faretta inquiry invalid if the court does not explicitly inquiry as to the defendant’s age, experience, and understanding of the Rules of Criminal Procedure?”
  The Florida Supreme Court answered the certified question in the negative and, in doing so, receded from the questioned language in Aguirre-Jarquin and McGirth.
  Faretta requires that a trial court must determine that a defendant who wishes to represent himself or herself must “knowingly and intelligently” waive the benefit of counsel.  “The accused must only ‘be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’’”  (Citations omitted.)  Some years after Faretta was decided, rule 3.111(d)(3) was amended.  As a result, the Supreme Court noted, “Two principles have emerged from our decisions following the issuance of Bowen and the amendment of rule 3.111(d)(3).  First, under the revised rule, ‘the ability to prepare a competent legal defense and technical legal knowledge (or lack thereof) are not relevant issues in a self-representation inquiry.’  . . .  Second, there is no longer any requirement that a trial court inquire about specific factors, ‘for there are no ‘magic words’ under Faretta.’ Potts v. State, 718 So.2d 757, 760 (Fla. 1998).”  The specific elements of the “thorough inquiry” required by Faretta “will vary depending on circumstances related to the defendant that are known to the trial judge.”
   The Court concluded:  “We hold that a Faretta colloquy is not rendered inadequate by the trial court’s failure to ‘inquire as to the defendant’s age, experience, and understanding of the rules of criminal procedure.’  McGirth, 209 So.3d at 1157 (quoting Aguirre-Jarquin, 9 So.3d at 602).  We thus answer the certified question in the negative.  Accordingly, we approve Hooks to the extent it is consistent with this opinion and recede from the identified language in Aguirre-Jarquin and McGirth.” Hooks v. State, __ So.3d __ (Fla., No. SC18-1106, 12/19/2019), 2019 WL 6906461.​


Supreme Court rules that public defender’s office did not provide ineffective assistance by representing defendant despite one of its lawyers being precluded from case due to acquaintance with victim and her family. [Added 12/11/19]
  Criminal Defendant was convicted of first-degree murder.  He filed a motion for postconviction relief pursuant to Fla.R.Crim.P. 3.851, which was denied.  On appeal, Defendant argued inter alia that the circuit court erred in denying his claim that his trial counsel was ineffective due to a conflict of interest.
  Defendant, who had been represented by lawyers in the public defender’s office, argued that the entire public defender’s office “was precluded from representing him because one attorney in the office – who never represented [Defendant] or had any involvement in or information pertinent to his case – was not assigned to represent [Defendant] because the attorney knew the victim and her family.
  The Supreme Court disagreed, relying on the “personal interest” exception to imputation of conflicts found in Rule 4-1.10(a).  That rule provides that a conflict of interest based on Rule 4-1.7 (current clients) or Rule 4-1.9 (former clients) ordinarily is imputed among lawyers who are currently associated in a “law firm” unless the conflict problem is “based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”
  The Court concluded that any conflict that precluded the affected lawyer from personally representing Defendant “was based on a ‘personal interest’ that did ‘not present a significant risk of materially limiting the representation of [Defendant] by the remaining lawyers in the [public defender’s office].’”  The lawyer in question knew the victim and her family from the community but did not have a close connection to them.  Further, “there is no evidence that the two assistant public defenders who represented [Defendant] knew the victim or her family or that they limited their representation of [Defendant] because their colleague did.  Thus, [Defendant] has not established an actual conflict precluding his representation by the public defender’s office, including the two attorneys from the office who represented him.”  Calhoun v. State, __ So.3d __ (Fla., No. SC18-340, 11/21/2019), 2019 WL 6204937.


Defendant’s otherwise-clear written request to represent himself not rendered equivocal just because request did not also ask to dismiss counsel. {added 10/25/19]
​ About 2 weeks before trial Criminal Defendant filed a pro se “Motion to Faretta” that requested a Faretta hearing on the ground that of his “right to self-representation.”  The trial court never held a hearing or ruled on the motion.  The case was tried and Defendant was convicted.
  The Second DCA reversed.  Defendant’s written motion “was an unequivocal request to represent himself.”  The State contended that Defendant’s request “was equivocal because he did not also request to dismiss his counsel.”  The court disagreed:  “While a request to dismiss counsel may go 
hand in hand with a request for self-representation, the failure to explicitly indicate one’s desire to discharge counsel does not otherwise make a clear request for self-representation any less so.”
  The court noted that McCray v. State, 71 So.3d 848, 868 (Fla. 2001), was distinguishable; in McCray the Supreme Court “determined that McCray’s request for self-representation was equivocal because ‘the record makes clear that McCray . . . sought to represent himself while simultaneously having counsel assist him.’  We have no such record in this case.”  Spera v. State, __ So.3d __ (Fla. 2d DCA, No. 2D18-1702, 10/23/2019), 2019 WL 5406484.


Trial counsel provided ineffective assistance by failing to research, advise him, and pursue dispositive motion to suppress. [Added 9/30/19]
  Criminal Defendant pleaded no contest to a violation of probation charge.  He was convicted and sentenced to 12 years in prison.  He filed a motion for postconviction relief pursuant to Fla.R.Crim.P. 3.850 alleging that trial counsel was ineffective for advising him to plead no contest without researching, advising him, and pursuing a dispositive motion to suppress.  The postconviction court denied the motion, and Defendant appealed.
  The Fifth DCA reversed and remanded.  The motion to suppress appeared to be viable.  Defendant was arrested at gunpoint and searched based on a tip from an unidentified informant.  The arresting officer observed no firearms or conduct on the part of Defendant that would have justified the stop and search.  “Based on the totality of the circumstances surrounding [Defendant]’s plea, there is an objectively reasonable probability that if he had known that he had a dispositive motion to suppress his substantive violations, he would not have entered a plea.”  Madison v. State, __ So.3d __ (Fla. 5th DCA, No. 5D18-3663, 9/13/2019), 2019 WL 4383439.


​Fifth DCA reverses criminal conviction on direct appeal for ineffective assistance of counsel on face of record. [Added 8/28/19]
  Defendant was charged with aggravated assault with a deadly weapon in connection with a road rage incident.  Defendant claimed that he brandished a gun in self-defense.  The gun was not fired.  Defense counsel requested an instruction on the justifiable use of deadly force, but not an instruction for justifiable use of nondeadly force.  Defendant was convicted.
  On direct appeal, the Fifth DCA reversed due to ineffective assistance on the face of the record.  Use of a deadly weapon in self-defense does not necessarily equate to the use of deadly force.  The only type of force that is deadly as a matter of law is the discharge of a firearm – which did not occur in Defendant’s case.  “[U][nder under the facts of this case, [Defendant] was entitled to a nondeadly force self-defense jury instruction.  Counsel’s failure to request this instruction is significant because a defendant’s use of deadly force is justifiable in much narrower circumstances (to prevent imminent death or great bodily harm or the commission of a forcible felony) than the use of nondeadly force (the preventing of imminent use of unlawful force).”  (Footnote omitted.)
  The failure to request the nondeadly force instruction was deficient performance, and it prejudiced Defendant in several ways.  Failure to request a jury instruction that provides a legal defense “is patently unreasonable.”  Additionally, “the State emphasized to the jury in its closing arguments that it should reject [Defendant’s] defense that he acted in self-defense because his actions showed that he ‘was not in fear of either death or serious bodily injury.’  If [Defendant’s] trial counsel had requested only the nondeadly force instruction, this argument could not have been made.”  Further, in his closing argument defense counsel “essentially asserted that [Defendant] had used what amounted to nondeadly force (drawing a gun), and that this force was entirely appropriate to halt Twigg’s aggressive driving towards him.  However, without the nondeadly force instruction, the jury had no ability to evaluate whether [Defendant] had acted in self-defense with nondeadly force, consistent with his counsel’s argument.”  Copeland v. State, __ So.3d __ (Fla. 5th DCA, No. 5D18-2869, 8/23/2019), 2019 WL 3976634.


​Defense counsel’s failure to object to State’s closing argument that jury should consider negative reaction of witness sitting in courtroom audience constituted ineffective assistance of counsel. [Added 8/12/19]
  Criminal Defendant was charged with 3 felony counts of molestation on a child under 16.  Defendant’s wife testified at trial on behalf of Defendant.  After her testimony, Defendant’s wife sat in the courtroom audience while Defendant testified.  During the state’s closing argument, the prosecutor referenced some of Defendant’s testimony and then said:  “Anybody look out in the audience when that was going on and see his wife shaking her head no?”  Defense counsel did not object.  Further, during its deliberations the jury asked whether witness behavior in the courtroom could be considered evidence.  “Defense counsel and the prosecutor agreed that such off-the-stand behavior could be considered evidence, and the jury was so advised by the trial court.”
  Defendant was convicted.  He filed a postconviction motion alleging that trial counsel was ineffective for failing to object to the prosecutor’s comment and agreeing that the jury could consider witness reaction as evidence.  The postconviction court denied relief, and Defendant appealed.
  The Fifth DCA reversed.  Counsel’s performance was deficient.  “This trial, like many, was a credibility contest.  Here, between the subject victim and the other girl who testified that she had been similarly molested, on the one hand, and [Defendant] and his wife on the other hand.  To permit the State to attack [Defendant]’s credibility with his wife’s off-the-stand reaction to his testimony may have undermined the credibility of both [Defendant] and his wife.  When that is coupled with defense counsel’s uneducated agreement to the jury being instructed that it could consider her reaction, defense counsel’s performance was ‘unreasonable under prevailing professional norms.’”  (Citation omitted.)
  As to prejudice, the credibility of Defendant and his wife “were improperly attacked by the State’s comment in closing.”  The court found a sufficient likelihood that Defendant was prejudiced by counsel’s deficient performance and reversed for a new trial.  Romero v. State, __ So.3d __ (Fla. 5th DCA, No. 5D18-3004, 8/2/2019), 2019 WL 3506556.


Fourth DCA applies “rare exception” and finds ineffective assistance of counsel on face of record in direct appeal. [Added 8/1/19]
​ The Fourth DCA found ineffective assistance of counsel on the face of the record in a direct appeal from a conviction in which Defendant was sentenced to a 25-year mandatory minimum sentence.  Such a sentence is required under the 10/20/Life statute where Defendant himself used a firearm and inflicted death or great bodily harm on the victim because of the discharge of that firearm.
  In Defendant’s case, however, Defendant and his brother had fired at the victim.  The victim was hit by several shots.  The state did not present evidence showing that the victim was hit by a shot from Defendant’s gun.  Defendant’s trial counsel, however, failed to move for a judgment of acquittal on the issue of whether Defendant’s discharge of a firearm caused great bodily harm to the victim.
  On direct appeal Defendant claimed that trial counsel’s failure to move for acquittal constituted ineffective assistance of counsel.  Ordinarily ineffective assistance claims are raised in a collateral, postconviction motion.  The Fourth DCA noted that an ineffective assistance claim is addressed on direct appeal only in “rare cases” where both prongs of the Strickland v. Washington test (deficient performance and prejudice) are apparent on the face of the record.  “This rare exception applies only when a tactical explanation for counsel’s conduct is inconceivable and the prejudice caused by counsel’s conduct is indisputable.”  That happened in Defendant’s case, and the appeals court reversed that conviction.  “[T]he State presented no evidence establishing that any of the shots fired by [Defendant] actually struck the victim.  Thus, there is no evidence to support the jury’s finding that [Defendant]’s discharge of a semiautomatic pistol caused the victim great bodily harm.”  Squire v. State, __ So.3d __ (Fla. 4th DCA, Nos. 4D18-290, 4D18-313, 7/17/2019), 2019 WL 3210665.


Fourth DCA affirms decision to deny motion for postconviction relief as untimely filed, but certifies question of great public importance relating to retroactivity of Weatherspoon decision. [Added 7/18/19]
  Criminal Defendant was charged with attempted first-degree murder and armed robbery.  At trial the State argued theories of attempted first degree and attempted felony first-degree murder.  The instructions to the jury included an instruction for first-degree felony murder.  Defendant was convicted on the charged counts.
  Defendant moved for postconviction relief, but the motion was denied as being successive and untimely.  On appeal Defendant argued that he was entitled to a new trial under Weatherspoon v. State, 214 So.3d 578 (Fla. 2017), in which the Florida Supreme Court held that the State must charge the crime of attempted felony murder to be entitled to a jury instruction on that crime and to proceed under that theory.  The Fourth DCA affirmed because the Supreme Court has not held that Weatherspoon applies retroactively.
  Nevertheless, the appeals court certified the following question as one of great public importance:  “Does the change in decisional law announced in Weatherspoon v. State, 214 So.3d 578 (Fla. 2017), apply retroactively to convictions that were final at the time that decision was rendered?”  Johnson v. State, __ So.3d __ (Fla. 4th DCA, No. 4D18-3528, 7/3/2019), 2019 WL 2849203.


Court erred in denying motion to substitute private counsel for appointed counsel where private counsel was willing to proceed with trial as scheduled and there was no finding of bad faith. [Added 5/28/19]
  Criminal Defendant was represented by appointed counsel.  Trial began on February 19.  The jury was selected and the trial recessed until February 22.  On February 21, private counsel was retained and filed a notice of appearance and motion for continuance of the trial.  At the hearing on the motion private counsel and Defendant informed the court that, while they sought a continuance, they were willing to proceed with the trial as scheduled.  The court denied the motion for continuance and substitution of counsel.  The court expressly declined to make a finding of bad faith on the part of Defendant or private counsel.  Defendant was tried and convicted.
  On appeal, Defendant contended that the trial court erred in failing to permit private counsel to represent him at trial.  The Fifth DCA agreed and reversed.  “Without a finding of bad faith and with [Defendant] and his private counsel willing to proceed with the scheduled trial that day so as not to cause any delay to the State or the victims, the failure to permit [Defendant] to be represented at trial by private counsel of his own choosing is a structural error, to which a harmless error analysis by our court would not apply.  . . .  Under these circumstances, reversal is required because the ‘[d]eprivation of the [Sixth Amendment] right [to counsel] is ‘complete’ when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received.’”  (Citations omitted.)  Wilcox v. State, __ So.3d __ (Fla. 5th DCA, No. 5D18-1636, 5/3/2019), 2019 WL 1967760.


Failure to advise defendant of “virtually certain deportation” as result of no contest plea constituted ineffective assistance, even if only slight possibility of acquittal if case went to trial.  [Added 5/15/19]
  Criminal Defendant, a foreign citizen lawfully residing in the United States, was charged with drug and other offenses.  He pleaded no contest to a felony possession count.  The court withheld adjudication and placed Defendant on probation.  The federal government commenced deportation proceedings.
  Defendant moved for postconviction relief under Fla.R.Crim.P. 3.850, arguing that his trial counsel did not advise him that the no contest plea would result in deportation and that he would have chosen to go to trial if counsel had advised him of the deportation consequences of the plea.  The postconviction court denied relief, finding that Defendant had no chance of being acquitted at trial and so it would have been objectively unreasonable to reject the plea offer.  Defendant appealed.
  The First DCA reversed.  Trial counsel’s performance was deficient because Defendant was “subject to virtually certain deportation if he pleaded no contest.”  The appeals court also concluded that Defendant had shown prejudice, citing to Lee v. United States, 137 S.Ct. 1958, 1966 (2017), where the Supreme Court “noted that, even where loss at trial is a virtual certainty, if a defendant views the consequences of losing at trial and pleading guilty as ‘similarly dire, even the smallest chance of success at trial may look attractive.’”
  Defendant risked no more than a year in county jail had he been found guilty at trial.  His uncontested testimony that he would have gone to trial but for counsel’s failure to inform him regarding deportation, the “limited additional consequence of a potential jury verdict of guilt, and even a slight possibility of an acquittal” led the appeals court to “hold that there was a reasonable probability that he would have risked proceeding at trial to avoid mandatory deportation.”  Alsubaie v. State, __ So.3d __ (Fla. 1st DCA, No. 1D17-3517, 4/29/2019), 2019 WL 1890062.


Receding from prior cases, First DCA en banc rules that trial judge does not violate criminal defendant’s due process rights by considering defendant’s remorse or refusal to accept responsibility in sentencing.  [Added 5/2/19]
  In an en banc decision, the First DCA addressed the issue of whether, in making a sentencing decision, a trial court may consider a criminal defendant’s lack of remorse or refusal to accept responsibility.  Prior decisions of the court concluded that considering these factors violated the defendant’s due process rights.  The en banc decision recedes from those opinions.
  The court summarized:  “We hold that a trial judge does not violate a defendant’s due process rights by merely considering the defendant’s lack of remorse or refusal to accept responsibility.  We hold that lack of remorse and refusal to accept responsibility can be valid sentencing considerations when sentencing within the statutory range, and we recede from our cases that suggest otherwise.”
  The First DCA certified this question to the Florida Supreme Court as one of great public importance:  “When, if ever, must an appellate court reverse a sentence based on the trial court’s consideration of ‘remorse,’ ‘failure to take responsibility,’ or the like?” Davis v. State, __ So.3d __ (Fla. 1st DCA, No. 1D17-0165, 4/25/2019) (en banc), 2019 WL 1797649.


Lawyer provided ineffective assistance by failing to argue on appeal that competency hearing should have been held as ordered. [Added 4/11/19]
​ While representing Criminal Defendant, defense counsel moved for a psychological examination prior to trial.  The court granted the motion and set a hearing date.  Neither Defendant (who was in jail) nor his new counsel appeared.  The prosecutor told the court that she had spoken with defense counsel, who thought the hearing was set in error.  The court “explained that there was no error and the hearing was set as required by” Fla.R.Crim.P. 3.210(b).  However, no competency hearing was held.  Defendant was convicted.
  On direct appeal, appellate counsel raised 2 issues but did not raise the competency issue.  Defendant petitioned for writ of habeas corpus, arguing that his appellate counsel provided ineffective assistance.  The Fourth DCA agreed and remanded the case for a competency hearing.  “Merely setting a hearing is not enough.  . . .  Here, the trial court did not conduct the competency hearing or otherwise determine the defendant was competent to proceed.  That failure constitutes fundamental error requiring reversal.”  Flaherty v. State, __ So.3d __ (Fla. 4th DCA, No. 4D18-2872, 3/27/2019), 2019 WL 1341458.


Notice of appeal filed pro se by defendant who is represented by counsel divests trial court of jurisdiction to rule on motion to withdraw plea. [Added 4/9/19]
  Criminal Defendant was convicted of robbery.  After serving his jail sentence he was on probation, but was arrested for robbery and related charges.  Defendant pleaded guilty to violating his probation.  He was sentenced to incarceration.
  While represented by counsel, Defendant filed a pro se notice of appeal.  He subsequently filed a motion to withdraw his guilty plea pursuant to Fla.R.Crim.P. 3.179(l).  The trial court dismissed the motion to withdraw the plea, “ruling that the notice of appeal divested it of jurisdiction to hear the motion.”  Defendant appealed.
  The Fifth DCA concluded that the trial court did not err in ruling that the pro se notice of appeal divested the court of jurisdiction to consider Defendant’s motion to withdraw his plea.  “When a defendant files a notice of appeal following the entry of a final judgment and sentence, whether ultimately determined to be effectual or not, the trial court is divested of jurisdiction.  . . .  Unlike most pro se pleadings filed by represented defendants, which courts strike as nullities, the filing of a notice of appeal has jurisdictional consequences for both the trial and appellate court.  Appellate courts are not in a position to know whether a notice of appeal received following the entry of a final judgment and sentence was appropriately filed by a pro se litigant and, as occurred in the instant case, accept such filings and open a new case.  It should not be the responsibility of the clerk of the appellate court to determine the status of legal representation or validity of a notice of appeal. Likewise, it should not be the province of the trial court to rule upon an appellate court’s jurisdiction.”  (Citation and footnote omitted.)
  Because the trial court not consider the motion to withdraw the plea, the appeals court reversed the trial court’s dismissal and remanded with instructions to strike Defendant’s motion to withdraw plea.  The court further noted that Defendant’s remedy would be to pursue a motion for postconviction relief under Fla.R.Crim.P. 3.850.  Carroll v. State, __ So.3d __ (Fla. 5th DCA, No. 5D18-98, 3/22/2019), 2019 WL 1302632.


Adjudication of delinquency reversed after court committed fundamental error by not conducting adequate inquiry into juvenile’s waiver of counsel. [Added 12/26/18]
 R.M., a juvenile on probation after a withheld adjudication for burglary, allegedly violated probation.  The state sought to adjudicate him delinquent.  At the plea hearing R.M. was unaccompanied by parent, guardian, or adult relative.  He desired to waive the right to counsel, and the court accepted the waiver after a brief inquiry.  At the subsequent disposition hearing R.M. was also unaccompanied.  The court adjudicated him delinquent and committed him to a residential program.  R.M. appealed, contending that “the trial court fundamentally erred by failing to make a proper inquiry into his waiver of counsel as required by” Fla.R.Juv.Proc.8.165.  The Second DCA agreed and reversed.
 Fla.R.Juv.Proc.8.165 requires appointed counsel at each stage of the proceeding unless waived, and states that a child “shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into the child's comprehension of that offer and the capacity to make that choice intelligently and understandingly has been made.”  Further, an assigned attorney “shall verify on the written waiver and on the record that the child's decision to waive counsel has been discussed with the child and appears to be knowing and voluntary.”
 These requirements were not followed by the trial court.  The ‘record is devoid of any discussion regarding whether [R.M.] had an opportunity, and whether that opportunity was meaningful, to confer with an attorney regarding his right to counsel, as required by rule 8.165(a). . . .  Further compounding the error, it is undisputed that no "parent, legal custodian, [or] responsible adult relative" was present when the written waiver of counsel was submitted to the trial court at the change of plea hearing.  Fla.R.Juv.P. 8.165(b)(3).  And there is no record evidence that an attorney assigned by the court to assist the child ‘verif[ied] . . . on the record that [R.M.’s] decision to waive counsel ha[d] been discussed with [R.M.] and appear[ed] to be knowing and voluntary,’ as required by rule 8.165(b)(3).”
 The failure to follow the rule resulted in fundamental error, which meant that R.M.’s waiver of counsel was invalid as a matter of law and could not support the plea.  R.M. v. State, __ So.3d  __ (Fla. 2d DCA, No. 2D17-4409, 11/28/2018), 2018 WL 6186176.


Court erred in not allowing criminal defendant to consult with counsel during brief recess between defendant’s direct testimony and cross-examination. [Added 11/30/18]
 While Criminal Defendant was testifying on direct examination he arguably opened the door to his prior arrests.  When his direct examination ended, the court ordered a 10-minute break before Defendant’s cross-examination would begin.  The court ordered Defendant not to speak with anyone during the break, including his lawyer.  After the cross-examination concluded, defense counsel moved for a mistrial and “argued ‘it’s fundamental error for a client not to be able to consult with his lawyer even when he is on the stand, even if he is in the middle of cross-examination.’  The State noted that it never went into the arrests issue, and the trial court agreed, stating:  ‘The reason why you wanted to talk to your client was moot because he didn’t do anything, he did not go into that issue.’”  Defendant was convicted.  He appealed.
 The Fourth DCA affirmed.  The state conceded that the trial court erred in not permitting Defendant to converse with his counsel during the break.  Citing Mears v. State, 183 So.3d 1230 (Fla. 4th DCA 2016), the appeals court noted that a defendant has the right to consult with his attorney during a recess, no matter how brief, even if the defendant is on the stand.  The court concluded, however, that the error was harmless in this case because Defendant’s “performance on cross-examination could not have affected the verdict.”   Cadavid v. State, __ So.3d __ (Fla. 4th DCA, No. 4D17-1224, 10/31/2018), 2018 WL 5733422.


New sentencing hearing ordered because defendant had right to be present and represented by counsel at proceeding. [Added 11/5/18]
 Criminal Defendant Lee was originally sentenced to 40 years for attempted murder with a 20-ear mandatory minimum for using a firearm.  There were also 20-year mandatory minimums in order counts, and the trial judge believed he had no discretion and was required to order the mandatory minimum sentences served consecutively.  Lee filed a Fla.R.Crim.P. 3.800(a) motion to correct illegal sentence, arguing that the 40-year sentence should have been a maximum of 30 years.  The court granted that motion and resentenced Lee to the 30-year maximum.  Neither Lee nor his counsel were present for the resentencing proceeding.
 On appeal the State conceded that the trial court erred in resentencing Lee without him and his counsel being present.  “Where a trial court grants a motion to correct an illegal sentence, a defendant has the right to be present at the resentencing and to be represented by counsel. . . . While a violation of this right is subject to a harmless error analysis . . . the State acknowledges, and we agree, that the error in this case is not harmless, as the trial court had discretion in imposing a corrected, legal sentence.”  (Citations omitted.)  The Third DCA reversed for a new sentencing proceeding at which Lee is present and represented by counsel.   Lee v. State, __ So.3d __ (Fla. 3d DCA, No. 3D18-698, 10/17/2018), 2018 WL 5020289.


Trial counsel ineffective for failing to introduce into evidence alleged victim’s school attendance records, where victim claimed to have skipped school as result of crime. [Added 9/4/18] -- 
 Defendant was charged with sexual battery on a child.  The child testified that he started skipping school because of the alleged abuse.  Defendant was convicted.  Defendant moved for postconviction relief, claiming trial counsel was ineffective because he failed to investigate and introduce into evidence the victim’s school attendance records.  The postconviction court denied relief.  Defendant appealed.
 The First DCA reversed.  At the postconviction hearing, trial counsel testified that he thought he had enough evidence to impeach the victim at the trial and that he did not remember “making a tactical decision one way or the other about the school records.”  Because the victim claimed the abuse caused him to skip school, whether the victim actually skipped school was a “pivotal issue” in the case and trial counsel’s failure to investigate and introduce the attendance records was deficient performance.  “Given that the victim’s credibility was the key issue in this case, we find that the failure to investigate and obtain the victim’s school records is sufficient to undermine confidence in the outcome of the trial.  We, therefore, conclude that [Defendant] has demonstrated the requisite prejudice to obtain postconviction relief.”   McBride v. State, __ So.3d __ (Fla. 1st DCA, No. 1D17-2825, 8/7/2018), 2018 WL 3733576.



Trial counsel not ineffective for failing to advise defendant of impact of guilty plea on future employment. [Added 8/17/18]
 Defendant pleaded guilty.  He later moved for postconviction relief, alleging that trial counsel provided ineffective assistance “because he misadvised [Defendant] regarding the impact of his plea on future employment, and therefore, his guilty plea should be vacated.”  The postconviction court denied the motion.
 The Third DCA affirmed.  “It is well-established that a defendant must only be made aware of the direct consequences of his or her plea.  . . .  Because the impact of a plea on current or future employment is a collateral consequence of the plea, as it does not affect a defendant’s range of punishment in any manner, we find that it is insufficient to render a plea involuntary and therefore does not provide a basis to vacate a plea.”  Ayesh v. State, __ So.3d __ (Fla. 3d DCA, No. 3D17-2597, 8/1/2018), 2018 WL 3636520.


Second DCA reverses conviction due to ineffective assistance of counsel. [Added 6/26/18]
 Defendant was convicted of felony drug offenses.  He was alone in a car in which the drugs were found.  He moved for postconviction relief under Fla.R.Crim.P. 3.850, alleging that trial counsel was ineffective for failing to present witnesses who would have testified that they had been driving and riding in the car on the day of Defendant’s arrest.  The postconviction court denied the motion.
 The Second DCA reversed and remanded for a new trial.  Defendant showed deficient performance by trial counsel, thus meeting the first prong of the Strickland v. Washington test (466 U.S. 668 (1984)).  “He presented unrefuted competent substantial evidence that counsel’s performance was deficient for failing to call two witnesses who would have testified to a potentially exculpatory fact at trial, namely that [Defendant] had not been the only person in the vehicle on the day of his arrest.  . . .  The failure to present any evidence that [Defendant] was not the only person in the vehicle that day, and thus to rebut the inference of [Defendant’s] knowledge of and control over the drugs, falls below the standard of reasonably effective counsel.”
 Defendant’s “knowledge of and control over the drugs was the only disputed issue at trial,” so counsel’s failure to present the witnesses who could have possibly provided the evidence necessary for the jury to acquit Defendant demonstrated the prejudice necessary to satisfy the second prong of the Strickland test.   Campbell v. State, __ So.3d __ (Fla. 2d DCA, No. 2D16-4698, 6/8/2018), 2018 WL 2749806.


Defendant’s conviction reversed due to inadequate Faretta hearing. [Added 5/2/18]
 Defendant pleaded guilty and was convicted.  He appealed, arguing that the trial court did not conduct an adequate Faretta hearing when he invoked his right to self-representation before entering his plea.
 The Fifth DCA reversed, ruling that the Faretta inquiry was inadequate.  “The inquiry in this case was even less complete than the inquiry we found deficient in Slinger [v. State, 219 So.3d 163 (Fla. 5th DCA 2017)].  Here, the trial court merely asked [Defendant]’s age, education, and the reason [Defendant] believed he could represent himself.  The court did not advise [Defendant] of any of the disadvantages and dangers of self-representation, or of the possible consequences of the criminal charges against him.  As in Slinger, the court also failed to inquire as to [Defendant]’s mental capacity to freely and voluntarily waive his right to counsel.  This is especially troubling given that [Defendant] filed a pro se ‘Notice to Rely on Insanity Defense,’ wherein [Defendant] alleged that ‘mental illness prevented him from willfully and knowingly violating his probation.’”  Scott v. State, __ So.3d __ (Fla. 5th DCA, No. 5D16-3278, 4/6/2018), 2018 WL 1646660.


Although court erred in conduct of Faretta hearing, denial of defendant’s motion to withdraw plea is affirmed because he abandoned request for self-representation.  [Added 4/27/18]
 Criminal Defendant asked the trial court to discharge his lawyer and appoint new counsel.  The court denied the request.  Defendant then asked to represent himself.  The court held a Faretta hearing.  Despite finding that Defendant was making a knowing and voluntarily decision to represent himself, the court denied his request “based on [Defendant]’s limited education and unfamiliarity with the rules of evidence and trial procedure.”
 Ultimately Defendant accepted a plea offer, stating that “he was satisfied with his counsel’s representation and was entering the plea freely and voluntarily.”  Defendant was sentenced to 7 year in prison.  He later moved to withdraw his plea, contending that “he was compelled to enter the plea because he felt he would suffer ‘poor and indifferent’ representation had he proceeded to trial with his court-appointed counsel.  The court denied the motion after a hearing based on [Defendant]’s prior assertions that he was satisfied with counsel’s representation.”
 The Fifth DCA affirmed.  Defendant contended, and the State conceded, that the trial court had applied the wrong standard in denying Defendant’s request to represent himself.  The focus of a proper Faretta inquiry is on whether the defendant makes a knowing and voluntary decision to represent himself, not on whether he is competent to do so.  “Nonetheless, under these circumstances, where Bland indicated he was satisfied proceeding with counsel subsequent to the Faretta inquiry, we find that Bland abandoned his request for self-representation.”   Bland v. State, __ So.3d __ (Fla. 5th DCA, No. 5D17-1626, 4/6/2018), 2018 WL 1646657.


Trial counsel was ineffective for failing to call 2 witnesses who would have supported defendant’s theory of defense but were excluded by motion in limine to which counsel did not object. [Added 4/25/18]
 Criminal Defendant was convicted of child abuse.  Defendant moved for post-conviction relief on the ground that his trial counsel was ineffective for failing to call 2 witnesses “who would have testified to support his theory of defense.  The witnesses were especially important because there was no physical evidence of abuse and the case hinged on the credibility of the victim and the victim’s mother.  The testimony of the 2 witnesses would have supported Defendant’s contention that the charges were fabricated for the benefit of the victim’s mother.
 The post-conviction court denied the motion, “reasoning that “counsel could not have called the two witnesses at trial because the trial court had granted a motion in limine which would have barred their testimony.”
 The Fifth DCA reversed and remanded for a new trial.  The court pointed out that trial counsel had “inexplicably failed to oppose the motion in limine, stating at the hearing on the motion, ‘Your Honor, I can’t think of a legal basis for which to allow that in.’”  Thus, the order on the motion in limine did not excuse counsel’s “otherwise deficient performance in failing to call these two exculpatory witnesses.”   Fletcher v. State, __ So.3d __ (Fla. 5th DCA, No. 5D17-432, 3/23/2018), 2018 WL 1436864.



First DCA emphasizes that there are no “magic words” required for court to conduct sufficient Faretta self-representation inquiry, but certifies question to Supreme Court. [Added 1/22/18]
 Criminal Defendant informed the trial court that he wished to represent himself.  In an effort to comply with the dictates of Faretta v. California, 422 U.S. 806 (1975), the court provided him with an “exhaustive” form that detailed his right to counsel, the benefits of having counsel, and the disadvantages of self-representation.  Defendant initialed every paragraph and signed every page.  The court then reiterated the dangers of self-representation and asked whether Defendant read the form carefully.  Defendant was then permitted to represent himself and was convicted.
 Although he did not object at trial, on appeal Defendant contends that the trial court conducted an inadequate inquiry ” was inadequate because the court failed to ask questions about his age, education, mental or physical health, ability to read and write, drug use, or prior self-representation.”
 The First DCA disagreed and affirmed, emphasizing that “no ‘magic words’ or specific questions are necessary to ensure an adequate Faretta inquiry.”  The court pointed out that “a competent defendant who does not suffer from severe mental illness and who has been advised of the disadvantages and dangers of self-representation cannot be denied the right to self-representation, regardless of age, education, experience, or the nature or complexity of the case.  While these factors may be relevant in determining competence, failure to inquire specifically into any of the factors does not automatically render a Faretta inquiry deficient.”
 The court rejected Defendant’s argument that Aguirre-Jarquin v. State, 9 So.3d 593 (Fla. 2009), invalidated self-representation unless the defendant was asked specific questions.
 The court concluded:  “There is competent substantial evidence in the trial record that [Defendant] knowingly and voluntarily waived his right to counsel and understood the disadvantages of doing so.  That is what Faretta and [Fla.R.Crim.P.] 3.111(d) require.  Any further inquiry runs afoul of the constitutional guarantee of self-representation.  However, in order to resolve the issue raised by Aguirre-Jarquin, we certify the following as a question of great public importance:  “Is a Faretta inquiry invalid if the court does not explicitly inquire as to the defendant’s age, experience, and understanding of the rules of criminal procedure?” Hooks v. State, __ So.3d __ (Fla. 1st DCA, Nos. 1D16-0368, 1D-16-0396, 1D16-0370, 12/6/2017), 2017 WL 6027897.


Denial of motion to withdraw guilty plea is reversed because defendant was denied appointed counsel at hearing on motion. [Added 1/16/18]
 Defendant pleaded guilty to burglary, robbery, and firearm charges.  Within 30 days of being sentenced, Defendant filed a motion to withdraw his plea.  His motion alleged that he had been coerced by counsel to accept the plea and that counsel failed to inform him of favorable evidence (inconclusive DNA results).  The trial court held an evidentiary hearing on the issue of whether counsel misadvised Defendant by not informing him of an available defense.  At the hearing Defendant requested that a lawyer be appointed to represent him, but the court denied the request.  After the hearing the court denied the motion to withdraw plea.  Defendant appealed.
 The Fourth DCA reversed.  A motion to withdraw a plea pursuant to Fla.R.Crim.P. 3.170(l) is a “critical stage” of the proceedings at which a defendant has a Sixth Amendment right to counsel.  The trial court erred in denying appointment of counsel, so the case was remanded “for a new hearing on the motion to withdraw the plea and for the court to appoint conflict-free counsel” for Defendant.  Jones v. State, __ So.3d __ (Fla. 4th DCA, No. 4D16-2721, 11/8/2017), 2017 WL 5171354.


Fourth DCA cautions appellate counsel against relying on trial counsel’s “admission” of ineffective assistance at defendant’s criminal trial. [Added 10/26/17]
 Criminal Defendant was convicted of sexual battery and appealed.  He argued that trial counsel provided ineffective assistance, and introduced trial counsel’s admission  that he provided ineffective assistance.  The Fourth DCA affirmed, pointing out that “a deficiency in performance cannot be presumed from counsel’s mere admission that he or she was ineffective.”  An admission is not evidence of counsel’s performance.
  The court concluded:  “Because an admission by counsel that he or she was ineffective cannot form the basis of an ineffective assistance of counsel claim, Marek [v. State], 14 So. 3d [985 (Fla. 2009)] at 1000, we caution counsel against relying on an attempt to fall on counsel’s own sword in order to rescue his or her client from a deficient performance.”  Douse v. State, __ So.3d __ (Fla. 4th DCA, No. 4D16-1762, 10/4/2017), 2017 WL 4417734.


Court’s failure to conduct Faretta hearing before allowing defendant to represent himself at pre-trial Williams rule hearing constitutes per se reversible error. [Added 11/16/17]
 Criminal Defendant was facing a Williams rule hearing.  On the day before the hearing, Defendant fired his counsel (who was planning to withdraw anyway).  At the hearing, the court granted counsel’s motion to withdraw.  The court asked Defendant if he wanted to go forward with the Williams rule hearing at that time.  Defendant agreed, and represented himself at the hearing.  No Faretta hearing was held.  Defendant was convicted.
 On appeal, Defendant contended that the court’s “failure to conduct any Faretta inquiry prior to permitting him to represent himself at the pre-trial Williams rule hearing – a critical stage of the proceeding – constitutes per se reversible error.  The appeals court agreed and reversed.
 The court rejected the State’s contention that a Williams rule hearing was not a crucial state in the proceedings.  A “crucial stage” is any stage that may significantly affect the outcome of the proceedings.  The court noted that the First DCA previously ruled that a hearing on a suppression motion was a crucial stage.  See Kearse v. State, 858 So.2d 348 (Fla. 1st DCA 2003).  The Fifth DCA saw “no substantive difference, at least for purposes of a defendant’s constitutional right to counsel, between a suppression hearing and a Williams rule hearing.”
 The court also rejected the State’s argument that Defendant was so “sufficiently sophisticated” in his knowledge of the courts and the law that a formal Faretta hearing was not required.  Although this narrow exception was recognized in Davis v. State, 10 So.3d 176 (Fla. 5th DCA 2009), the record in Defendant’s case “falls far short of meeting” that exception.  Dickerson v. State, __ So.3d __ (Fla. 5th DCA, No. 5D16-3316, 10/6/2017), 2017 WL 4448009.


Appellate counsel’s failure to raise issue that was dispositive in co-defendant’s appeal resulted in “manifest injustice” warranting reversal for new trial. [Added 9/12/17]
 Defendant and Co-Defendant were charged with first-degree felony murder.  They had been arrested after a traffic stop.  Both moved to suppress the traffic stop on the ground that the officer lacked reasonable suspicion.  The motion was denied.  Both were convicted.
 Co-Defendant raised the issue on appeal and was successful; his conviction was reversed.  Defendant’s counsel did not raise the issue on appeal.  Defendant then filed a motion for habeas corpus, arguing that “his appellate counsel was ineffective for failing to argue that the trial court erred in denying the motion to suppress.”  The Fourth DCA agreed, reversing for a new trial.  “Disparate treatment of similarly situated co-defendants can result in manifest injustice, warranting habeas relief.”  The court concluded that “[t]o give relief to one co-defendant but deny another co-defendant the same relief under virtually identical circumstances ‘is a manifest injustice that does not promote – in fact, it corrodes – uniformity in the decisions of this court.’”  (Citation omitted.)   Johnson v. State, __ So.3d __ (Fla. 4th DCA, No. 4D16-3571, 8/23/2017), 2017 WL 3616438.


Criminal defense counsel’s rejection of court’s offer to declare mistrial constituted ineffective assistance.  [Added 8/28/17]
 Defendant was convicted after a jury trial.  He petitioned for postconviction relief under Fla.R.Crim.P. 3.850, alleging that trial counsel was ineffective for rejecting the trial court’s offer to declare a mistrial based on prosecution witnesses vouching for the credibility of the victims.  At the hearing, counsel testified that he rejected the court’s offer because he believed it was not in his client’s best interest to agree to the mistrial “because to do so would have eliminated what counsel felt was a strong issue for appeal – that the State had been permitted to amend the information after the jury had been impaneled and sworn.  Counsel further testified that he believed that by agreeing to a mistrial based ‘on that one little problem’ – that ‘the witness said an opinion’ – he would have nullified what he perceived as a bigger issue.”  The motion was denied.
 The Second DCA reversed.  “Counsel's failure to move for a mistrial, or to accept the court's apparent offer of a mistrial, constitutes deficient performance. It was unreasonable for counsel to decline a new trial in favor of pursuing an issue for appeal which – if successful – would have garnered the same result.”   Sierra v. State, __ So.3d __ (Fla. 2d DCA, No. 2D15-2769, 8/4/2017), 2017 WL 3316196.


Counsel was ineffective for failing to inform defendant that he qualified for sentencing as habitual felony offender (HFO) even though State did not file intent to seek HFO sentence until after trial. [Added 8/23/17]
 Defendant, who had multiple prior felonies, was charged with vehicular homicide and related counts.  The State made a plea offer of 15 years, which Defendant rejected.  He went to trial and was convicted.  Before sentencing, the State filed a notice of intent to seek habitual felony offender (HFO) sentencing.  Defendant was sentenced to 30 years.
  Defendant filed a motion for postconviction relief under Fla.R.Crim.P. 3.850, alleging that trial counsel provided ineffective assistance “by not informing him that he potentially faced sentencing as an HFO.”  At the hearing, defense counsel admitted that he did not know that Defendant qualified as an HFO.  The trial court, however, denied Defendant’s motion, reasoning that “because the State did not file its notice of intent to seek sentencing as an HFO until after trial, defense counsel did not provide ineffective assistance by failing to inform Appellant of that possibility during plea negotiations.”
 The Fifth DCA reversed, relying on Lester v. State, 15 So.3d 728 (Fla. 4th DCA 2009).  “We disagree with the trial court's conclusion that, because the State did not file its notice of intent to seek an HFO sentence until after trial, defense counsel did not provide ineffective assistance. Defense counsel should have informed Appellant that his twelve prior felony convictions potentially qualified him for the HFO designation, regardless of whether the State sought HFO sentencing before or after trial.”   Parenti v. Florida, __ So.3d __ (Fla. 5th DCA, No. 5D16-2203, 8/18/2017), 2017 WL 3567501.


Ineffective assistance claim based on allegations that defendant would have entered open plea if counsel properly advised him is “too speculative to support postconviction relief." [Added 8/14/17]
 Convicted Defendant filed a motion for postconviction relief, alleging that “he would have entered an open plea rather than proceeding to trial but for his counsel’s misadvice regarding the validity of his asserted defense at trial.”  The motion was denied.
 The First DCA affirmed.  In Alcorn v. State, 121 So.3d 419 (Fla. 2013), the Supreme Court recognized a claim of ineffective assistance by a defendant who alleged that that trial counsel deficiently advised him to reject a plea offer because he would win the case or receive a lesser sentence if the case was tried.  Defendant, however, asked the First DCA “to go further than Alcorn.  The State never conveyed a plea offer to [Defendant] that he rejected due to alleged misadvice.  Instead, [Defendant] alleges that he would have entered an open plea if counsel had properly advised him, and that an open plea would have resulted in a lesser sentence than he received.  We hold that such a claim is too speculative to support postconviction relief.”  (Emphasis by court.)   Carter v. State, __ So.3d __ (Fla. 1st DCA, No. 1D16-4541, 6/27/2017), 2017 WL 2790709.


Supreme Court vacates death sentence conviction and remands for new penalty phase based on counsel’s ineffective assistance in conducting unreasonable mitigation investigation. [Added 7/21/17]
 Defendant was convicted of murder and sentenced to death.  He filed a motion for postconviction relief under Fla.R.Crim.P. 3.851, which the trial court denied.  Defendant appealed, contending that the trial court erred in denying his claim of ineffective assistance of counsel during the penalty phase.  The Florida Supreme Court agreed, vacated his death sentence, and remanded for a new penalty phase.
 The Court concluded that Defendant’s trial counsel has conducted an unreasonable mitigation investigation.  For example, counsel spent only 9.5 hours on a mitigation investigation prior to the start of the guilt phase, and “probably” another 6 to 7 hours prior to the start of the penalty phase.  The Court noted that “[f]rom a review of the evidentiary hearing transcript and the record, it is clear that counsel failed to obtain, or was unaware of, significant records and mitigation evidence that could have assisted in the defense’s penalty phase presentation.” 
 Further, the Court had “little doubt that the quality and depth of the postconviction evidence painted a more complete and troubling picture of Bevel’s background than was presented to the jury and the trial court – something postconviction counsel was able to uncover primarily due to the extensive investigation undertaken by mitigation specialist Sara Flynn.”  After reweighing the evidence in aggravation against the mitigation evidence that was presented only during the postconviction proceeding, the Court concluded that its confidence in the outcome of the penalty phase was undermined.   Bevel v. Florida, __ So.3d __ (Fla., Nos. SC14-770, SC14-2106, 6/15/2017), 2017 WL 2590702.


Fourth DCA reverses criminal conviction due on direct appeal due to ineffective assistance of counsel. [Added /8/17]
 The Fourth DCA took the unusual action of reversing a criminal conviction on direct appeal due to trial counsel’s ineffective assistance in failing to request a self-defense jury instruction under the specific facts of the case.  “[S]elf-defense was appellant’s only proffered defense to the battery charge.  By neglecting to request a self-defense instruction that was clearly applicable to the facts and circumstances of the case, appellant’s trial counsel was constitutionally ineffective.  Clearly there is a reasonable probability that the error by appellant’s trial counsel was prejudicial.  . . .  Although claims of ineffective assistance of counsel are usually reserved for post-conviction relief under rule 3.850, here the ineffectiveness of counsel is ‘apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue.’”  [Citations omitted.] Kruse v. State, __ So.3d __ (Fla. 4th DCA, No. 4D16-1422, 5/31/2017), 2017 WL 2364719.


Order sentencing self-represented defendant on violation of probation charge reversed because court failed to renew an offer of counsel before sentencing. [Added 6/28/17]
 Criminal Defendant was charged with violation of probation (“VOP”).  After a Faretta hearing on November 6, the trial court permitted Defendant to represent himself with standby counsel.  The first hearing was held on November 18.  It was continued.  The hearing resumed on November 24, with Defendant still representing himself.  Neither at the start of the November 24 hearing nor at the start of sentencing following that hearing did the court renew the offer of assistance of counsel.  Defendant was found guilty on the VOP charge and sentenced.

The Fourth DCA reversed the sentencing order.  Although the original offer of counsel made at the Faretta hearing remained valid through the November 24 hearing, sentencing is a “critical stage” and the court erred by not renewing the offer prior to sentencing.  “[A]s as the record does not reflect that [Defendant] relied on standby counsel at any point during the VOP hearing, the trial court erred in failing to renew an offer of counsel before the sentencing hearing on his probation violation even though the hearing occurred immediately following the conclusion of the VOP hearing.” Birlkey v. State, __ So.3d __ (Fla. 4th DCA, No. 4D15-1184, 5/24/2017), 2017 WL 2264648.


Court erred in failing to allow substitution of counsel in incapacity proceeding. [Added 6/19/17]
 The trial court appointed lawyer Cserep to represent Client in an incapacity hearing filed by her son.  Months went by without Cserep contacting Client.  Client and her daughter retained successor counsel, Smith.  Smith filed a notice of appearance, but the trial court entered an order deeming the notice ineffective because of the court’s view that a motion for substitution of counsel should have been filed.  The court “also held that it ‘will not entertain a substitution of counsel motion until the incapacity petition has been heard in order to determine whether the alleged incapacitated person had the ability to contract with a new attorney.’”  Smith hand-delivered a motion for substitution to the court and clerk, but it was refused because it was not e-filed.
 Client and Smith petitioned for a writ of mandamus to require the trial court to accept and rule on the motion to substitute counsel.  The First DCA granted the petition. Per F.S. 744.331(2)(b), Client “a clear legal right to have counsel of her own choosing.  She also has the right to have her motion for substitution be heard as soon as possible; it would deny her due process, for example, to wait until the final adjudication of her status overall.”
 In a footnote, the court commented on Cserep’s “lack of diligence,” noting that he “has had a number of appeals dismissed in this Court in the past 18 months due to a similar lack of diligence.” Campbell v. Campbell, __ So.3d __ (Fla. 1st DCA, No. 1D17-0074, 5/16/2017), 2017 WL 2126617.


Court’s “brief advisement concerning deportation in the middle” of plea colloquy did not cure counsel’s misadvice to criminal defendant regarding deportation consequences of guilty plea.  [Added 5/28/17]
 Criminal Defendant, a non-US citizen, pleaded guilty to drug crimes.  The Department of Homeland Security initiated deportation proceedings.  Defendant filed a motion for postconviction relief alleging ineffective assistance of counsel because his trial counsel allegedly “specifically advised him on two separate occasions that his pleas would not subject him to deportation if the trial court withheld adjudication.”  The court summarily denied the motion, “adopting the State’s reasoning that the trial court’s advisement during the plea colloquy, “if you are not a U.S. citizen you are subject to deportation,” cured any prejudice from counsel’s misadvice.  Defendant appealed.
 The Second DCA reversed and remanded.  Under Hernandez v. State, 124 So.3d 757 (Fla. 2012), for a plea colloquy to satisfy counsel’s duty under Padilla v. Kentucky, 559 U.S. 356 (2010), to correctly inform a defendant of the presumptively mandatory deportation consequences of pleading guilty, it must appear from the totality of the circumstances that the defendant entered the plea with knowledge of the deportation consequences.  In this case, the plea colloquy “contained a string of advisements regarding nearly a dozen different rights that [Defendant] was giving up by pleading guilty, with a brief advisement concerning deportation in the middle” (i.e., “and if you are not a U.S. citizen you are subject to deportation”).
 The Second DCA concluded that “the trial court's brief statement, in the midst of a long colloquy, that the pleas would subject [Defendant] to deportation was insufficient to meet counsel’s duty under Padilla, and it does not establish that [Defendant] knew the deportation consequences of pleading guilty.  Accordingly, the record does not conclusively refute [Defendant]’s claim of prejudice.” Goddard v. State, __ So.3d __ (Fla. 2d DCA, No. 2D16-2969, 4/21/2017), 2017 WL 1423455.


Convicted defendant’s claim of ineffective assistance denied on appeal because he could not show that representation was “adversely affected” whene original prosecutor switched to become his defense counsel on same case. [Added 5/11/17]
 Defendant was charged by information with burglary of a dwelling and other charges.  Lawyer, an assistant state attorney, signed the information (and an amended information), provided discovery, offered Defendant a plea deal, and appeared for hearings.  At some point, however, Lawyer left the state and was retained as Defendant’s new private counsel.  Lawyer “did not inform the court of her prior prosecutorial role.”  Defendant was convicted.  He appealed, claiming ineffective assistance of counsel.
 The Fourth DCA affirmed.  “[T]he test [for ineffective assistance of counsel] from Cuyler [v. Sullivan, 446 U.S. 335 (1980)], as applied in Hunter [v. State, 817 So.2d 786 (Fla. 2002)], requires [Defendant] to demonstrate, first, that an actual conflict existed and, second, that the conflict adversely affected the attorney’s performance.  Even if we assume that the facts of this case, where the attorney worked as both a prosecutor and defense counsel on the very same case, met the first prong of Hunter, [Defendant] has failed to demonstrate that ‘the conflict adversely affected the lawyer’s representation.’”  The court pointed out that Defendant “is unable to identify a single instance where trial counsel’s prior participation as a prosecutor ‘adversely affected’ or compromised her representation of [Defendant].”
 The court expressly rejected the invitation to adopt a “per se” rule.  Such a rule would be at odds with Cuyler and Hunter.  The court further noted that Rule 4-1.11, which deals with lawyers who move from government to private employment, is designed primarily “to protect the public office and not necessarily the private client.”
 The court stated that “we express no opinion as to the ethicality of the former prosecutor’s conduct in this case, but merely state that appellant did not meet the standard set in Cuyler and Hunter.” Flaherty v. State, __ So.3d __ (Fla. 4th DCA, No. 4D15-4777, 5/10/2017), 2017 WL 1927738.


Supreme Court adopts rules of procedure to be following regarding claims for ineffective assistance of counsel in termination of parental rights proceedings. [Added 5/1/17]
 The Florida Supreme Court approved changes to the Rules of Juvenile Procedure and to Fla.R.App.P. 9.146 in order to codify procedures relating to claims of ineffective assistance of counsel in termination of parental rights cases.  The changes took effect immediately.
 In J.B. v. Fla. Dept. of Children and Families, 170 So.3d 780 (Fla. 2015), the Supreme Court had recognized the right to effective assistance of counsel in termination of parental rights cases and adopted interim procedures to be followed in bringing such claims.  The Court appointed a Select Committee to work with other committees (Appellate Court Rules and Juvenile Rules) in making recommendations for permanent rules.  The committees could not agree on a single proposal, and offered two versions of rules:  a narrow version “tailored to provide an ineffective assistance of court-appointed counsel claim for indigent parents in termination of parental rights cases” and a broad version “that would apply to all counsel for all parents in such cases.  Both versions were approved by the Bar’s Board of Governors and submitted to the Court.  The rules adopted by the Court were based on the broad version, with modifications.
 The rules provide that the trial court (Fla.R.Juv.P. 8.510, 8.525) and a parent’s counsel (Fla.R.Juv.P. 8.517) must inform the parent of the parent’s right to make a claim for ineffective assistance of counsel.  An indigent parent does not have a right to court-appointed counsel to bring a claim for ineffective assistance (Fla.R.Juv.P. 8.517, 8.530).  An indigent parent, however, does have a right to appointed appellate counsel “concerning appellate review of the trial court’s order on the motion for ineffective assistance of counsel” (Fla.R.Juv.P. 8.530). In re: Amendments to Florida Rules of Juvenile Procedure and Florida Rule of Appellate Procedure 9.146, __ So.3d __ (Fla., No. SC16-553, 3/23/2017), 2017 WL 1090564.


First DCA reverses postconviction court’s order granting new trial on ground that defense counsel rendered ineffective assistance by failing to object to comments by prosecutor during closing argument. [Added 4/18/17]
 Defendant Ling was charged with possession of drugs, possession of a firearm by a convicted felon, and resisting arrest.  The drug possession trial was severed.  At the trial on the firearm charge, witnesses testified that a gun and drugs, which were in a backpack, were found in a car that was driven by Ling.  Ling was not in the car when police approached it, but his nephews were.  Defense counsel argued that the drugs and gun may have belonged to them.  During closing argument the prosecutor made comments regarding the gun and the drugs.  Ling was convicted.
 Ling moved for postconviction relief pursuant to Fla.R.Crim.P. 3.850.  “The court granted Ling’s motion for postconviction relief, concluding that the prosecutor’s statements linking ‘drugs and guns’ were improper because they suggested Ling was guilty of marijuana possession – a crime for which he was not on trial – and further, that because he was guilty of possessing marijuana, he was also guilty of possessing a firearm.  The court concluded that if counsel had objected, Ling would have been entitled to either a mistrial or a strongly worded curative instruction.  Because the court was not convinced the failure to object did not contribute to the verdict, it ordered a new trial on the possession of a firearm charge.  The State appealed.”
 The First DCA reversed.  “[N]otwithstanding the severance of Ling’s drug possession charges, he expressly agreed to allow evidence of the marijuana found in the car because it was central to his theory of defense. I ndeed, the presence of marijuana was known to the jury from the outset of trial, when the defense referred to Ling’s vehicle as a ‘cannabis car’ during opening statements.  Further, the implication that ‘drugs and guns go together’ was introduced by the defense during closing argument, and it was central to the theory that both the marijuana and the gun may have belonged to Ling’s nephews, rather than to Ling.  Thus, because the prosecutor’s rebuttal argument fell well within the bounds of an invited reply to the defense’s closing argument, the postconviction court erred in finding that Ling would have been entitled to a mistrial or curative instruction if counsel had objected.” State v. Ling, __ So.3d __ (Fla. 1st DCA, No. 1D15-4714, 3/10/2017), 2017 WL 945908


On direct appeal, Fifth DCA reverses first-degree murder conviction and remands for entry of judgment for second-degree murder based on ineffective assistance of counsel apparent on face of record. [Added 3/13/17]
 Defendant was convicted of first-degree murder.  On appeal he argued that there was insufficient evidence of premeditation to support the conviction and contended that counsel was ineffective for failing to raise that issue at trial.  At the conclusion of the state’s case, Defendant’s counsel “unsuccessfully moved for a judgment of acquittal, arguing that there was a lack of evidence that [Defendant] had committed the homicide or that he possessed an intent to kill the victim.  However, defense counsel failed to argue the sufficiency of the evidence (or lack thereof) regarding premeditation.”  At the conclusion of the defense’s case, counsel renewed the motion for acquittal but did not argue the sufficiency of the evidence on the element of premeditation.  Premeditation is the key element that distinguishes first-degree murder from second-degree murder.
 The state argued on appeal that defense counsel failed to raise the premeditation issue below.  The appellate court agreed, but stated that it did “not perceive any strategic or tactical reason for trial counsel to have failed to do so. [Defendant’s] defense to the charge of first-degree murder was that he did not kill the victim and, indeed, was not even in Sanford [where the murder occurred] on the day of the murder.  That defense would have been equally applicable to a charge of second-degree murder.  Because the ineffectiveness of [Defendant’s] trial counsel is apparent from the face of the record and given that the prejudice caused by the ineffective assistance is indisputable, reversal is appropriate.” Barnes v. State, __ So.3d __ (Fla. 5th DCA, No. 5D15-2798, 2/3/2017), 2017 WL 456935.


Appellate counsel’s duty to keep abreast of changes in law has limits, rules First DCA in rejecting ineffective assistance of counsel claim.  [Added 2/16/17]
 Defendant was convicted of armed robbery and sexual battery.  His sentence included three 10-year mandatory minimums, and the trial court concluded that under F.S. 775.087(2) it was statutorily required to run them consecutively.  After Defendant's appeal had been affirmed, the Supreme Court held that the statute did not require the sentences to run consecutively in Williams v. State, 186 So.3d 989 (Fla. 2016).  Williams was pending during Defendant’s appeal but not released until after the opinion and mandate had issued.
 Defendant filed a petition for writ of habeas corpus.  He pointed out that appellate counsel had made the same argument that the Supreme Court ultimately accepted in Williams, and argued that counsel was ineffective "for failing to preserve the issue via the timely filing of a rule 3.800(b)(2) motion” – even though Defendant conceded that “the law in this district at the time of his appeal was that mandatory sentences imposed pursuant to section 7775.087(2) were to be imposed consecutively.”
 The First DCA denied the petition.  The law at the time of briefing ordinarily controls the determination of whether appellate counsel was ineffective for failing to raise an issue.  On occasion, the First DCA has held “that appellate counsel was ineffective even after briefing was completed for failing to request supplemental briefing based upon a relevant change in the law.”  Unlike in other cases in which the exception applied, however, Defendant’s sentences and convictions were final before the law changed. Watts v. State, __ So.3d __ (Fla. 1st DCA, No. 1D16-1765, 1/23/2107), 2017 WL 280896.



Postconviction court properly denied ineffective assistance motion as successive where court found that defense counsel did not have good cause for failing to file claim with original motion. [Added 1/12/17] -- 
 Appellant filed a motion for postconviction relief that was denied.  He filed another motion, alleging an ineffective assistance of counsel claim that was not raised in the first motion.  Appellant stated that his prior counsel had not reviewed the entire transcript at the time the first postconviction motion was filed and that counsel had advised him that he likely would not be allowed to raise additional postconviction claims later.  Nevertheless, Appellant argued that his first motion was incomplete due to misadvice of counsel. 
 The postconviction court denied the motion as successive under Fla.R.Civ.P. 3.850(h)(2), “which provides that ‘a court may dismiss a second or successive motion’ that alleges new or different grounds for relief if ‘the judge finds that the failure of the defendant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure or there was no good cause for the failure of the defendant or defendant’s counsel to have asserted those grounds in a prior motion.’”
 The First DCA affirmed.  The permissive language of rule 3.850(f)(2) “indicates that the determination of good cause is a matter of discretion for the trial court,” and the postconviction court acted within its discretion.  “[B]y by providing that the court may dismiss a successive claim if it finds that either the defendant or his counsel (if represented) did not have good cause for failing to present the claim in the earlier motion, the rule permits a trial court to bar a successive motion precisely when the claims in the successive motion were omitted from the original motion due to counsel’s oversight.  The language of the rule indicates that if counsel did not have good cause for failing to file the claim with the original motion, then the client may be required to suffer the consequence of counsel’s failing.  This effect of the rule is consistent with Florida case law providing that there is no state remedy for ineffective assistance of postconviction counsel, Kormondy v. State, 154 So.3d 341, 354 (Fla. 2015), and we are not at liberty to rewrite the rule.” Ruth v. State, __ So.3d __ (Fla. 1st DCA, No. 1D15-4099, 12/21/2016), 2016 WL 7392277.


Supreme Court affirms grant of new trial to murder defendant whose trial counsel was ineffective due to laboring under conflicts of interest. [Added 11/21/16] -- State v. Dougan, __ So.3d __ (Fla., No. SC13-1826, 10/20/2016), 2016 WL 6137285.


Criminal defendant’s reliance on counsel’s allegedly incorrect advice regarding whether plea could result in photo being posted on FDLE website may constitute ineffective assistance of counsel. [Added 11/7/16] -- Peng v. State, __ So.3d __ (Fla. 5th DCA, No. 5D16-1480, 10/28/2016), 2016 WL 6393779.


Court erred by not conducting sufficient inquiry when criminal defendant sought continuance to obtain private counsel. [Added 11/2/16] -- Valcarcel v. State, __ So.3d __ (Fla. 4th DCA, No. 4D14-4695, 10/5/2016), 2016 WL 5846446.


Court may consider deposition testimony of trial counsel rather than live testimony at evidentiary hearing on Fla.R.Crim.P. 3.850 ineffective assistance of counsel motion. [Added 9/7/16] -- Grange v. State, __ So.3d __ (Fla. 4th DCA, No. 4D-14-1864, 8/24/2016) (on rehearing), 2016 WL 4493447.


Conviction reversed because court erred in combining Faretta and Nelson rulings. [Added 6/1/16] -- Petruschke v. State, __ So.3d __ (Fla. 4th DCA, No. 4D13-3180, 5/18/2016), 2016 WL 2894098.


Court’s failure to orally inform parent in termination of parental rights proceeding of right to assert ineffective assistance claim in circuit court does not require abatement of direct appeal and remand for filing. [Added 4/12/16] -- T.D. v. Dept. of Children and Families, __ So.3d __ (Fla. 5th DCA, No. 5D15-4460, 3/17/2016), 2016 WL 1062189.


Appellate counsel provided ineffective assistance by failing to raise on direct appeal court’s error in denying defendant’s request for jury instruction on necessarily lesser-included offense. [Added 4/4/16] -- Grant v. State, __ So.3d __ (Fla. 4th DCA, No. 4D15-1590, 2/19/2016), 2016 WL 717961.


Supreme Court resolves conflict among DCAs regarding whether person charged with direct criminal contempt has right to counsel.  [Added 3/19/16] -- Plank v. State, __ So.3d __ (Fla., No. SC14-414, 3/17/2016), 2016 WL 1065696.


Supreme Court rules that defendant pursuing postconviction motion on ground of failure to present expert witness need not always identify witness by name and allege witness’s availability for trial.  [Added 3/12/16] -- State v. Lucas, __ So.3d __ (Fla., No. SC14-1925, 1/28/2016), 2016 WL 339550.



Order terminating father’s parental rights is reversed because court failed to advise father of his right to counsel at manifest best interests hearing. [Added 3/4/16] -- D.V. v. Dept. of Children and Families, __ So.3d __ (Fla. 4th DCA, No. 4D15-3445, 3/2/2016), 2016 WL 805306.


Faretta hearing can be required when there is “hybrid representation,” and judge’s familiarity with defendant does not excuse failure to conduct Faretta hearing. [Added 3/3/16] -- Silva v. State, __ So.3d __ (Fla. 3d DCA, No. 3D13-334, 3/2/2016), 2016 WL 822010.


Supreme Court adopts 2-prong test for determining postconviction claims for newly discovered evidence in cases in which guilty plea was entered. [Added 2/23/16] -- Long v. State, __ So.3d __ (Fla., No. SC14-2351, 1/21/2016), 2016 WL 264329.


Conviction reversed because trial court prohibited defendant from conferring with lawyer during recess while defendant was on witness stand. [Added 2/3/16] -- Mears v. State, __ So.3d __ (Fla. 4th DCA, No. 4D13-1926, 1/20/2016), 2016 WL 231374.


Trial counsel was ineffective because he incorrectly advised defendant regarding proper way to challenge court’s ruling that defendant was competent to stand trial.[Added 12/31/15] -- Anderson v. State, __ So.3d __ (Fla. 5th DCA, No. 5D14-2625, 12/31/2015), 2015 WL 9491860.


In postconviction proceeding appeal, Supreme Court rules that lower court did not err in refusing to admit trial counsel’s disciplinary record as support for defendant’s allegations of ineffective assistance.  [Added 9/25/15] -- Hernandez v. State, __ So.3d __ (Fla., Nos. SC13-718, SC13-2330, 9/17/2015), 2015 WL 5445655.



Because Sixth Amendment right to effective counsel is offense-specific, lawyer did not provide ineffective assistance by allowing client to confess to uncharged murder on which lawyer did not represent client.  [Added 7/29/15] -- Wyne v. State, __ So.3d __ (Fla. 4th DCA, No. 4D13-1940, 7/29/2015).



Supreme Court holds that right to counsel in termination of parental rights cases includes right to effective assistance of counsel. [Added 7/13/15] --  J.B. v. Dept. of Children and Families, __ So.3d __ (Fla., No. SC14-1990, 7/9/2015), 2015 WL 4112321.


Supreme Court holds that trial court not required to obtain conflict of interest waiver when criminal codefendants are represented by same lawyer but there is no actual conflict of interest between them. [Added 7/11/15] -- State v. Alexis, __ So.3d __ (Fla., No. SC14-1341, 7/9/2015), 2015 WL 4112372.



Court applied wrong legal standard in ruling that criminal defendant could not represent himself.  [Added 5/9/15] -- Williams v. State, __ So.3d __ (Fla. 4th DCA, No. 4D13-2904, 4/29/2015), 2015 WL 1930315. (See also Williams v. State, __ So.3d __ (Fla. 1st DCA, No. 1D13-2893, 5/1/2015), 2015 WL 1955973.)

 

Criminal defendant’s conviction reversed because counsel was ineffective for failing to object to prosecution’s comments on defendant’s post-arrest silence. [Added 4/12/15] -- Floyd v. State, __ So.3d __ (Fla. 1st DCA, No. 1D14-2577, 3/18/2015), 2015 WL 1223704.


Supreme Court adopts new Rule of Juvenile Procedure regarding appointing counsel to dependent children with special needs. [Added 2/19/15] -- In re: Amendments to the Florida Rules of Juvenile Procedure, __ So.3d __ (Fla., No. SC15-150, 2/19/2015).


Third DCA declines to extend Padilla v. Kentucky to require counsel to advise defendant of immigration-related consequences of guilty plea short of deportation. [Added 1/16/15] -- Rosario v. State, __ So.3d __ (Fla.4th DCA, No. 4D13-4329, 1/7/2015), 2015 WL 71820.


Criminal defendant’s Sixth Amendment right to counsel violated when the court denied his lawyer’s request to conduct inquiry into potential conflict arising from state’s alleged investigation of lawyer. [Added 11/10/14] -- Rutledge v. State, __ So.3d __ (Fla. 4th DCA, No. 4D10-5022, 10/29/2014), 2014 WL 5460628. 


First DCA urges Supreme Court to adopt procedure for raising ineffective assistance of counsel claims in parental rights termination proceedings where ineffectiveness is not apparent on face of record.  [Added 10/19/14] -- J.B. v. Dept. of Children and Families, ___ So.3d __ (Fla. 1st DCA, No. 1D13-4346, 10/7/2014). 


Court erred by applying wrong test to determine whether criminal defendant would be allowed to represent himself. [Added 8/24/14] -- Tarver v. State, __ So.3d __ (Fla. 2d DCA, No. 2D12-5345, 8/20/2014). 


Criminal defendant’s lawyer did not provide ineffective assistance of counsel by refusing to call witness who would testify falsely. [Added 8/16/14]  --  Kilpatrick v. State, __ So.3d __ (Fla. 1st DCA, No. 1D14-0723, 8/12/2104). 


After reaffirming that there is no right to appointment of appellate counsel in postconviction proceedings, Second DCA adopts new procedure for handling postconviction appeals when appointed counsel find no arguable issues to brief. [Added 8/15/14] -- Beliveau v. State, __ So.3d __ (Fla. 2d DCA, No. 2D12-2993, 8/8/2014). 

Supreme Court adopts minimum standards for lead counsel in capital postconviction proceedings and prohibits defendants sentenced to death from representing themselves in postconviction proceedings. [Added 7/7 14] -- In re: Amendments to the Florida Rules of Judicial Administration; the Florida Rules of Criminal Procedure; and the Florida Rules of Appellate Procedure – Capital Postconviction Rules, __ So.3d __ (Fla., No. SC13-2381, 7/3/2014). 


Defense counsel’s alleged failure to tell client of plea offer deadline, and then not returning client’s calls, “may be tantamount to failing to communicate” offer and thus grounds for rule 3.850 motion. [Added 5/6/14] -- Brown v. Florida, __ So.3d __ (Fla. 4th DCA, No. 4D13-1225, 4/30/2014). 


Criminal defendant's request to represent himself does not have to be in writing to trigger need for Faretta hearing.   [Added 2/20/14]  -- Combs v. State, __ So.3d __ (Fla. 2d DCA, No. 2D12-3255, 2/14/2014). 

​

Certifying conflict with other DCAs, First DCA concludes that defendant does not have a right to counsel when charged with direct criminal contempt.  [Added 2/5/14]  -- Plank v. State, 130 So.3d 289 (Fla. 1st DCA 1/29/2014).

Denial of post-conviction relief remanded to determine whether lawyer’s inadequate representation, which led to his disbarment, prejudiced client.  [Added 11/14/13]  --  Wallace v. State, 128 So.3d 139 (Fla. 2d DCA 11/8/2013).  

Fourth DCA declines to extend holding in Spera v. State to ineffective assistance of appellate counsel claims.  [Added 11/6/13]  --  Fields v. State, 126 So.3d 382 (Fla. 4th DCA 10/30/2013). 

​Pretrial defendant not denied access to courts when he chose self-representation knowing he had no access to legal research materials.  [Added 10/22/13]  --  Henry v. State, 124 So.3d 958 (Fla. 5th DCA 10/11/2013).

Conviction reversed because defendant was excluded from conference between judge, prosecutor, and defense counsel about defense counsel’s competence.  [Added 6/21/13]  --  Sims v. State, __ So.3d __, 38 Fla.L.Weekly D1788 (Fla. 2d DCA, No. 2D11-6221, 6/12/2013), 2013 WL 4457409. 

Supreme Court addresses ineffective assistance claims based on counsel's failure to correctly inform defendant of maximum possible penalty when advising on plea offer.  [Added 6/16/13]  --  Alcorn v. State, 121 So.3d 419 (Fla. 6/13/2013). 

For purposes of Faretta self-representation inquiry, jury selection is not a separate, crucial stage from rest of trial.  [Added 5/31/13]  --  Brown v. State, 113 So.3d 134 (Fla. 1st DCA 5/22/2013). 

Supreme Court amends criminal and appellate procedure rules relating to postconviction proceedings.  [Added 4/21/13]  --  In re: Amendments to the Florida Rules of Criminal Procedure and the Florida Rules of Appellate Procedure, 112 So.3d 1234 (Fla. 4/18/2013). 

Supreme Court rules that criminal defendant’s lawyer, not defendant, has final authority to call or not call witnesses at trial.  [Added 4/14/13]  --  Puglisi v. State, 110 So.3d 1196 (Fla. 4/11/2013). 

Court violated criminal defendant’s constitutional rights by denying continuance sought to allow replacement of private counsel.  [Added 3/13/13]  --  Madison v. State, __ So.3d __, 38 Fla.L.Weekly D531 (Fla. 1st DCA, No. 1D11-2210, 3/6/2013), 2013 WL 811789. 

Ineffective assistance claim recognized by Padilla v. Kentucky applies only to defendants in the country legally at time of plea.  [Added 2/15/13]  --  Joseph v. State, 107 So.3d 492 (Fla. 4th DCA 2013).  See also Donegal v. State, 107 So.3d 490 (Fla. 4th DCA 2/13/2013). 

2-year time limit for filing rule 3.850 motion for postconviction relief is tolled while defendant was in custody in another state with no access to Florida legal materials.  [Added 2/5/13]  --  Wilson v. State, 105 So.3d 667 (Fla. 4th DCA 1/30/2013). 

Florida Supreme Court affirms postconviction court’s summary denial of claim that trial counsel’s heavy workload resulted in actual conflict of interest.  [Added 12/27/12]  --  Dennis v. State, 109 So.3d 680 (Fla. 2012).

​Lawyer’s representation of criminal defendant while on one-month suspension from practice is not per se reversible error, per Fourth DCA.  [Added 12/17/12]  --  Thornhill v. State, 103 So.3d 949 (Fla. 4th DCA 2012). 

Board of Governors concludes that criminal plea offers conditioned on waivers of ineffective assistance of counsel and prosecutorial misconduct are unethical.  [Added 12/14/12] 
​ In December 2012 the Florida Bar Board of Governors approved Florida Ethics Opinion 12-1, which concludes that a criminal defense lawyer has an unwaivable conflict of interest that precludes the lawyer from advising a client whether to accept a plea offer requiring the client to waive any past or future ineffective assistance of counsel by the defense lawyer or to waive any claims of prosecutorial misconduct.  The opinion also concludes that it is unethical for a prosecutor to make such an offer. 

​First DCA rejects contention that Lafler and Frye create new constitutional rights concerning ineffective assistance of counsel claims.  [Added 12/13/12]  --  Simmons v. State, 104 So.3d 1185 (Fla. 1st DCA 2012). 

Per Florida Supreme Court, standard warning on immigration consequences of plea can be constitutionally deficient, but Padilla’s holding not applied retroactively.  [Added 11/25/12]  --  Hernandez v. State, 124 So.3d 757 (Fla. 11/21/2012).  See also Chaidez v. United States, __ U.S. __, __ S.Ct. __ (U.S., No. 11-820, 2/20/2013). 

Ineffective assistance claim based on alleged misadvice concerning rule 3.170(l) motion to withdraw plea is cognizable and cannot be waived.  [Added 11/16/12]  --  Pagan v. State, 110 So.3d 3 (Fla. 2d DCA 2012). 

Quoting Popeye the Sailor Man, Third DCA bars prisoner from further pro se filings.  [11/xx/12]  --  Woodson v. State, 100 So.3d 222 (Fla. 3d DCA 2012). 

Fourth DCA reverses criminal conviction on direct appeal due to ineffective assistance apparent on face of record.  [Added 9/18/12]  --  Capiro v. State, 97 So.3d 298 (Fla. 4th DCA 2012). 

Per Second DCA, criminal defendant cannot waive claim of ineffective assistance regarding counsel’s advice about entering into plea agreement.   [Added 8/23/12]  --  Contreras-Garcia v. State, 95 So.3d 993 (Fla. 2d DCA 2012). 

First DCA joins the 4 other DCAs in ruling that Padilla v. Kentucky should not be retroactively applied.  [Added 8/11/12]  --  Zamora v. State, 112 So.3d 112 (Fla. 1st DCA 2012). 

Fourth DCA certifies question to Florida Supreme Court about ineffective assistance claims based on misadvice about plea offers.  [Added 7/21/12]  --  Sirota v. State, 95 So.3d 313 (Fla. 4th DCA 2012). 

Florida Supreme Court vacates death sentence due to ineffective assistance of counsel in investigating and presenting mitigation evidence.  [Added 7/16/12]  --  Robinson v. State, 95 So.3d 171 (Fla. 2012). 

Florida Supreme Court reiterates that courts reviewing summary denials of postconviction motions must accept movant's factual allegations as true if not refuted by record.  [Added 6/17/12]  --  Nordelo v. State, 93 So.3d 178 (Fla. 2012). 

Fourth DCA clarifies legal standard applicable to postconviction ineffective assistance claims related to defendant’s competency.  [Added 5/11/12]  --  Thompson v. State, 88 So.3d 312 (Fla. 4th DCA 2012). 

​Per Florida Supreme Court, recent U.S. Supreme Court decision in Martinez v. Ryan does not create new cause of action for ineffective assistance of collateral counsel.  [Added 4/12/12]  --  Gore v. State, 91 So.3d 769 (Fla. 4/9/2012). 

U.S. Supreme Court issues 2 opinions addressing ineffective assistance in the context of plea bargains.  [Added 4/3/12]  --     The United States Supreme Court recently issued 2 opinions expanding the range of ineffective assistance of counsel claims available to convicted criminal defendants.  The 2 cases addressed ineffective assistance in the context of plea bargains.    Missouri v. Frye, 132 S.Ct. 1399 (2012).   A 5-4 majority of the Court concluded that a criminal defense lawyer who fails to inform a client of a written plea offer before it expires has rendered constitutionally ineffective assistance of counsel.  “Defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”  This is the case even though there is no constitutional right to be offered a plea bargain.  In order to prove prejudice, however, the defendant must show that the plea bargain would have been consummated had the defendant been told of it (i.e., the defendant must demonstrate that he or she would have accepted the offer, that the court would have approved it, and that the agreement would have resulted in a lower sentence than the defendant actually received).    Lafler v. Cooper , 132 S.Ct. 1376 (2012).   A 5-4 majority of the Court concluded that a criminal defendant who was given erroneous advice by defense counsel the prejudiced necessary to establish an ineffective assistance of counsel claim even if he or she received a fair trial after not accepting the plea offer.  “Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence.” 

Client’s consent to trial counsel’s strategic choice is fatal to ineffective assistance of counsel claim.  [Added 3/10/12]  --   Mendoza v. State, 81 So.3d 579 (Fla. 3d DCA 2012). 

Court must appoint counsel for indigent parent in private termination of parental rights proceeding.  [Added 3/61012]  --  T.M.W. v. T.A.C., 80 So.3d 1103 (Fla. 5th DCA 2012). 

Failure to respond right away to defendant's request for advice about plea offer does not constitute ineffective assistance of counsel.  [Added 1/28/12]  --  Hurt v. State, 82 So.3d 1090 (Fla. 4th DCA 2012). 

Fourth DCA finds ineffective assistance on face of record in direct appeal in one case but not in another.  [Added 1/19/12]  -- 
 Cognizable on direct appeal.  Due to what the appeals court referred to as a "very rare incidence where ineffective assistance of counsel is apparent on the face of the record," a defendant's criminal conviction was reversed.  Trial counsel "failed to move to sever two distinct counts of a criminal information until after the jury was informed of both crimes.  Although the trial court tried to salvage a bad situation, the damage was irreparable, as counsel continued to perform ineffectively."  The Fourth DCA commented that "[i]t is inconceivable to us how [counsel] could have participated in jury selection, listened to the judge read four charges to the jury, questioned the jury, and the next day moved to sever two of the counts that the jury already heard.  His performance is so clearly deficient that we hardly need to say much else."  In closing, the court cautioned that its decision was "limited by the specific facts of this case and does not show a greater leniency of this court to find ineffective assistance on the face of the record.  As we said in the beginning, this case is a rare exception to the general rule."  Hills v. State, 78 So.3d 648 (Fla. 4th DCA 2012).    
 Not cognizable on direct appeal.  Trial counsel failed to object to admission of defendant's incriminating statement made after he invoked his right of silence.  The defendant contended on direct appeal that this ineffective assistance was apparent on the face of the record and warranted reversal.  The Fourth DCA disagreed.  "Generally ineffective assistance of counsel is not cognizable on direct appeal; the exception is where ineffectiveness is apparent on the face of the record.  Mansfield v. State, 758 So.2d 636, 642 (Fla. 2000).  Here, we cannot say that ineffectiveness is so readily apparent that we should reverse without further development in postconviction proceedings.  The statement, 'I’m talking to you no more,' appears close to that deemed equivocal in State v. Owen, 696 So.2d 715, 717-18 & n.4 (Fla. 1997) ('I don’t want to talk about it.').  Postconviction proceedings are more appropriate to flesh out whether the failure to object constitutes deficient performance by the attorney and whether it was prejudicial to the outcome."  Kelly v. State, 77 So.3d 818 (Fla. 4th DCA 2012). 

Per Florida Supreme Court, lawyer whose prepared witness “chokes” on stand has not rendered ineffective assistance of counsel.  [Added 12/13/11]  --  Buzia v. State, 82 So.3d 784 (Fla. 2011). 

Conviction reversed for ineffective assistance of counsel that appeals court concluded was apparent on face of record.  [Added 12/6/11]  --  Gordon v. State, __ So.3d ___, 36 Fla.L.Weekly D2590 (Fla. 3d DCA, No. 3D09-1396, 11/30/2011), 2011 WL 6016913. 

Defendant who insisted on speedy trial could not later claim that lawyer ineffective assistance by failing to properly prepare for trial.  [Added 11/20/11]  --  Allen v. State, 75 So.3d 333 (Fla. 3d DCA 2011). "Courts are not required to hold evidentiary hearings on objectively unreasonable postconviction claims," per 4th DCA.  [Added 11/13/11]  --  Capalbo v. State, 73 So.3d 838 (Fla. 4th DCA 2011). 

Motion for postconviction relief filed 25 years after alleged misadvice regarding deportation consequences of plea is denied.  [Added 11/1/11]  --  Baxter v. State, 73 So.3d 333 (Fla. 5th DCA 2011). 

Florida Supreme Court clarifies that death-sentenced appellants may not proceed pro se in any postconviction appeals.  [Added 10/10/11]  --  Gordon v. State, 75 So.3d 200 (Fla. 2011). 

Summarizing the law, postconviction court did not err in denying defendant's motion to discharge counsel and appoint new counsel.  [Added 9/12/11]  --  Jones v. State, 69 So.3d 329 (Fla. 4th DCA 2011). 

Court erred in summarily denying motion for postconviction relief because newly-discovered evidence was proffered through hearsay affidavits.  [Added 8/24/11]  --  Merritt v. State, 68 So.3d 936 (Fla. 3d DCA 2011). 

Appellate counsel ineffective for not arguing that jury instruction was fundamental error based on conflict among DCAs.  [Added 8/18/11]  --  Lopez v. State, 68 So.3d 332 (Fla. 5th DCA 2011).  See also Ferrer v. State, 69 So.3d 360 (Fla. 2d DCA 2011).

Shelter order is reversed because trial court did not honor father's right to counsel at hearing.  [Added 8/1/11]  --  A.G. v. Florida Dept. of Children and Families, 65 So.3d 1180 (Fla. 1st DCA 2011). 

Florida Supreme Court amends Florida Rule of Criminal Procedure 3.850 effective July 1, 2011.  [Added 6/30/11]  --  In re: Amendments to Florida Rules of Criminal Procedure 3.850 and 3.851; Amendments to Florida Rules of Appellate Procedure 9.141 and 9.142, 72 So.3d 735 (Fla. 2011). 

Second DCA reverses conviction due to ineffective assistance of counsel apparent on face of record.  [Added 6/30/11]  --  Benitez-Saldana v. State, 67 So.3d 320 (Fla. 2d DCA 2011). 

Court must hold Faretta-like hearing before exercising discretion to grant or deny request for self-representation in non-capital postconviction matter.  [Added 6/20/11]  --  Freeman v. State, 65 So.3d 553 (Fla. 2d DCA 2011) (on rehearing). 

Court improperly shifted from court to defendant burden to cite to record in postconviction motion.  [Added 6/15/11]  --  Perez-Ocequeda v. State, 62 So.3d 1228 (Fla. 5th DCA 2011). 

Florida Supreme Court reverses death penalty and remands for life sentence where trial counsel was ineffective for failing to do any investigation into possible mitigation.  [Added 6/8/11]  --  Coleman v. State, 64 So.3d 1210 (Fla. 2011). 

Per Third DCA, Florida's standard deportation warning in criminal cases is constitutionally deficient after Padilla v. Kentucky.  [Added 4/11/11]  --  Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).    NOTE:  Accord, Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011); State v. Shaikh, 65 So.3d 539 (Fla. 5th DCA 2011) (Padilla relief not retroactive). 

Trial counsel was ineffective as a matter of law for relying on sheriff's office webpage rather than underlying source documents.  [Added 4/6/11]  --  Thomas v. State, 57 So.3d 291 (Fla. 4th DCA 2011). 

Faretta inquiry that did not inform defendant of advantages of having counsel was inadequate; conviction reversed.  [Added 4/1/11]  --  Vega v. State, 57 So.3d 259 (Fla. 5th DCA 2011). 

Private lawyer paid by State to represent defendant in capital postconviction case may also represent him pro bono in related non-capital case.  [Added 3/17/11]  --  Melton v. State, 56 So.3d 868 (Fla. 1st DCA 2011). 

​Rule 3.850 claim based on  unpreserved error is not facially sufficient where appellate court found the error did not constitute fundamental error.  [Added 3/10/11]  --  Sheppard v. State, 62 So.3d 14 (Fla. 3d DCA 2011). 

Second DCA suggests procedure that trial courts should use to address postconviction claims in light of Spera v. State.  [Added 3/2/11]  --  Verity v. State, 56 So.3d 77 (Fla. 2d DCA 2011). 

Faretta hearing required when non-capital postconviction defendant who has appointed counsel decides he want to represent himself.  [Added 2/15/11]  --  Freeman v. State, 65 So.3d 553 (Fla. 2d DCA 2011). 

​Defendant not entitled to evidentiary hearing on postconviction claim that he lied under oath at plea hearing at counsel's direction.  [Added 1/31/11]  --  Polk v. State, 56 So.3d 804 (Fla. 2d DCA 2011).