Defendant cannot establish prejudice where error complained about was necessarily considered by court during Anders review.  [Added 9/1/10]

    Convicted Defendant appealed with appointed counsel, who filed an Anders [v. California, 386 U.S. 738 (1967)] brief.  The First DCA affirmed the conviction.  Defendant subsequently timely filed a petition alleging ineffective assistance of appellate counsel.  Defendant asserted that "his appellate counsel was ineffective for failing to argue that the trial court erred in denying his motion for judgment of acquittal because the evidence against him was entirely circumstantial and not inconsistent with his reasonable hypothesis of innocence.  [Defendant] contends that he was prejudiced by his appellate counsel’s failure to present this argument because had counsel presented this argument, it i likely that his conviction would have been reversed."

    The First DCA denied the petition, concluding that Defendant was unable to show the required prejudice.  When an Anders brief is filed, the appeals court independently examines the trial record for any errors that are apparent on the fact of the record.  The court stated:  "It is reasonable to presume that when the court affirms an Anders appeal it has fully considered and rejected all potential issues that were apparent on the face of the record.  . . .  Accordingly, at least with respect to an issue that was apparent on the face of the record, the petitioner cannot establish that any alleged deficient performance by counsel in not briefing such an issue 'compromised the appellate process to such a degree as to undermine confidence in the correctness of the result' because the issue was necessarily considered by the court in its Anders review.  This is particularly true  where, as here, the issue that is the basis of the claim of ineffective assistance of appellate counsel was identified by counsel in the Anders brief."  (Citations omitted.)  Towbridge v. State, __ So.3d ___ (Fla. 1st DCA, No. 1D10-3708, 8/31/2010).

Trial court's failure to conduct preliminary Nelson inquiry is per se reversible error.  [Added 8/26/10]

    Defendant filed a motion to discharge appointed counsel.  On the day of trial, Defendant's counsel informed the court that there was a problem between the two.  Defendant stated that there was a conflict of interest and wanted a new lawyer.  "Instead of inquiring as to the basis for the alleged conflict of interest, the court immediately responded, 'You're not entitled to another lawyer.'"  Ultimately the court conducted a Faretta [ v. California, 422 U.S. 806 (1975)] self-representation inquiry, but Defendant chose to go to trial represented by his existing counsel.  Defendant was convicted.  He appealed.

    The Second DCA reversed the conviction.  When a defendant makes an unequivocal request to discharge counsel, the trial court must determine the reason for the request.  If counsel is not rendering effective assistance, then substitute counsel is to be appointed.  See Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).  Here, the trial court failed to conduct a preliminary Nelson hearing.  This was reversible error.  "[A] court's failure to conduct any preliminary Nelson hearing is per se error such that a harmless error test does not apply."  (Citations omitted.)  The court explained:  "While it is possible that [Defendant's] claims would not have warranted a full Nelson inquiry, the record does not clearly establish this fact.  Instead, the trial court improperly assumed that [Defendant's] dissatisfaction with counsel was not based on counsel's incompetency or that a Nelson hearing, if conducted, would have dispelled any notion of counsel's incompetency."  Torres v. State, __ So.3d ___ (Fla. 2d DCA, No. 2D08-3861, 8/20/2010).

Criminal defendant validly waived right to counsel after watching pre-recorded video about constitutional rights.  [Added 8/16/10]

    Defendant was arrested.  Along with others, he "watched a pre-recorded video explaining the constitutional rights of individuals accused of committing a crime, signed several waiver forms, and testified to the County Court judge that he wished to 'handle the case' himself."  Defendant pleaded no contest.  Defendant subsequently moved to withdraw his plea.  When the court denied his motion, Defendant appealed.  The Circuit Court affirmed.  Seeking to withdraw his plea, Defendant then petitioned the First DCA for a writ of certiorari.

    The appellate court denied the petition.  The court noted that, under Faretta v. California, 422 U.S. 806 (1975), a waiver of the right to counsel must be knowing and intelligent – that is, made with "eyes open."  Fla.R.Crim.P. 3.111(d)(2) (2009) provides the procedure that Florida courts should use in complying with Faretta.  The court stated that this rule "requires only:  (1) advisement of the dangers of self-representation; and (2) enough of an inquiry to ensure the defendant is waiving the right to counsel knowingly and intelligently."  The court concluded that this standard had been met.  "The County Court discussed with [Defendant] whether he had prior convictions, whether he wished to rehear the mandatory minimum penalties for DUI, whether he wished to represent himself, whether he had read and understood the rights on the 'blue form,' and how he wished to plead.  Although this inquiry may have been brief, it gave the County Court adequate time to make valid conclusions about [Defendant]’s competency to decide whether he wished to waive his right to counsel.  Had the County Court harbored misgivings over [Defendant]'s competency, it would not have accepted the waiver.  Apparently, it had no concerns."  Edenfield v. State, __ So.3d ___ (Fla. 1st DCA, No. 1D09-6554, 8/10/2010), 2010 WL 3119928.

Convicted defendant satisfies prejudice prong of Strickland v. Washington by showing counsel failed to move for mistrial that would have been granted.  [Added 8/2/10]

    Defendant was being tried for murder.  After jury deliberations began the state's motion to strike a juror was granted.  The juror was discharged.  The trial court asked Defendant whether he wished to proceed with 11 jurors or have an alternate seated.  Defendant's counsel failed to inform him of a third option, which was to move for a mistrial on the ground that the juror was discharged during deliberations.  Proceeding with an 11-member jury, Defendant was convicted.

    In Defendant's second postconviction motion, he asserted that counsel was ineffective in failing to move for a mistrial.  The postconviction court denied the motion, and Defendant appealed.

    The First DCA reversed.  The court noted that the case "squarely raises the issue of whether the certain grant of a mistrial satisfies the prejudice requirement of Strickland [v. Washington, 466 U.S. 668 (1984)]."  In this case, the denial of a significant procedural right satisfied the prejudice prong of Strickland.  Middleton v. State, __ So.3d ___, 35 Fla.L.Weekly D1656 (Fla. 1st DCA, No. 1D09-48, 7/23/2010), 2010 WL 2872996.

Court erred in not appointing counsel for indigent "non-offending" parent in dependency case.  [Added 7/30/10]

    The Department of Children and Family Services filed a dependency petition charging a minor's Mother with abuse.  No charges were brought against Father.  Father established that he was indigent and requested appointed counsel.  The trial court denied his request, relying on C.L.R. v. Department of Children & Families, 913 So.2d 764 (Fla. 5th DCA 2005).

    The Third DCA granted Father's petition for writ of certiorari.  C.L.R. distinguished between "offending" and "non-offending" parents for purposes of appointment of counsel.  The Third DCA rejected this distinction, finding it lacking in statutory support.  "Based on this plain language [of Fla.Stat. sec. 39.013(1)] any imposition of a qualifier or restriction on the definition of the term 'parent' or on which 'parent' is entitled to the statutorily mandated, court-appointed counsel contradicts the plain meaning of the statute."  The appeals court found support for its conclusion in Fla.R.Juv.Proc. 8.320, which "has no limitation or qualification."

    The Third DCA certified conflict with C.L.R.  W.G. v. S.A., __ So.3d ___, 35 Fla.L.Weekly D1684(Fla. 3d DCA, No. 3D10-1265, 7/28/2010), 2010 WL 2925355.

First DCA denies postconviction motion as time-barred and refers filer to Dept. of Corrections for disciplinary action.  [Added 7/21/10]

    Convicted Defendant filed a motion for postconviction relief pursuant to Fla.R.Crim.P. 3.850.  Defendant's conviction had become final 19 years before he filed the postconviction motion.  His motion provided "no reason for his tardiness and fail[ed] to allege any of the exceptions listed in Rule 3.850(b)(1-3)."  The trial court denied the motion as untimely.

    The First DCA affirmed.  "When the trial court denied the action as time barred, [Defendant] ignored its reasoning and filed the instant appeal.  Such action, which shows a lack of respect for court procedure and an indifference to the law, has resulted in court time and resources being spent on an appeal whose baseless nature was plain from the start."  As a result, the appeals court stated:  "[W]e not only affirm the denial of [Defendant]'s 3.850 motion, but also recommend that the Department of Corrections impose disciplinary sanctions, including, if appropriate, the loss of gain time."  Knowles v. State, __ So.3d ___ (Fla. 1st DCA, No. 1D10-2586, 7/20/2010).

    NOTE:  Other recent cases in which the appeals court referred a moving defendant to the Department of Corrections for disciplinary action include:  Pleas v. State, __ So.3d ___, 35 Fla.L.Weekly D1707 (Fla. 1st DCA, No. 1D10-2197, 7/30/2010), 2010 WL 2976931; and Clift v. State, __ So.3d ___, 35 Fla.L.Weekly D1711 (Fla. 1st DCA, No. 1D10-2563, 7/30/2010), 2010 WL 2976929.

Fourth DCA affirms denial of motion to withdraw guilty plea based on alleged misadvice of counsel as to deportation consequences.  [Added 7/16/10]

    Criminal Defendant was charged with a felony but entered a negotiated plea to a misdemeanor.  During the plea colloquy, the trial judge gave Defendant the "standard warning" required by Fla.R.Crim.P. 3.172(c)(8) that the conviction may result in deportation.  Shortly after his conviction the federal immigration authorities sought to deport Defendant.  Defendant filed a timely Fla.R.Crim.P. 3.850 motion to withdraw his plea, alleging that he entered the plea to the misdemeanor charge because his attorney assured him that, unlike the felony charge, the misdemeanor conviction would not cause him to be deported.  At the evidentiary hearing on his motion Defendant "admitted that he understood the judge’s warning but relied on his attorney’s advice instead."  (Footnote omitted.).  The motion was denied.  Defendant appealed.

    The Fourth DCA affirmed.  The trial court's "Rule 3.172(c)(8) deportation warning in the plea colloquy cures any prejudice arising from counsel’s alleged misadvice.  [Defendant] is not entitled to withdraw his plea on the basis of ineffective assistance of counsel, and we affirm."  The appeals court distinguished Padilla v. Kentucky, 130 S.Ct. 1473 (2010).  Padilla had not been advised by the trial judge during the plea colloquy that his plea might result in deportation.

    The court concluded:  "A defendant’s sworn answers during a plea colloquy must mean something.  A criminal defendant is bound by his sworn assertions and cannot rely on representations of counsel which are contrary to the advice given by the judge.  . . .  When the Court advises that the plea may result in deportation, a defendant has an affirmative duty to speak up if the attorney has promised something different.  . . .  The court’s warning that [Defendant] may be deported based on his plea cured any prejudice that might have flowed from counsel’s alleged misadvice.  . . .  When [Defendant] entered his plea, he assumed the risk that he 'may' be deported."  Flores v. State, __ So.3d ___, 35 Fla.L.Weekly D1562 (Fla. 4th DCA, No. 4D08-3866, 7/14/2010), 2010 WL 2882465.

Florida Supreme Court concludes defendant's request to pro se was "unequivocal" and reverses murder conviction.  [Added 7/6/10]

    Defendant in a first-degree murder case was dissatisfied with his counsel.  Just before jury selection began, Defendant asked the court to proceed pro se.  The trial court conducted a Faretta [v. California, 422 U.S. 806 (1975)] hearing, at which Defendant stated that he "would love to have a lawyer" but that he did not want his current counsel.  Defendant indicated that he realized that the court would not appoint a new lawyer and that he would rather proceed pro se.  (The court previously conducted a Nelson [v. State, 274 So.3d 256 (Fla. 4th DCA 1973)] hearing and found current counsel to be rendering effective assistance.)  The court denied the request.  Defendant went to trial and was convicted.  Defendant appealed, contending that "the trial court erred in determining that his request to proceed pro se was equivocal and in thereafter denying that request."

    The Florida Supreme Court agreed and reversed the conviction, relying on the reasoning of Weaver v. State, 894 So.2d 178 (Fla. 2001).  In Weaver, the Court stated:  "A defendant who persists in discharging competent counsel after being informed that he is not entitled to substitute counsel is presumed to be unequivocally exercising his right to self-representation."  In the instant case, "[t]he fact that [Defendant] stated to the trial court that he preferred representation by a different attorney is of no consequence.  [Defendant]'s comments showed his correct understanding that the trial court‘s ruling after the Nelson hearing meant that [trial counsel] was the only appointed counsel to which he was entitled.  Faced with that reality, [Defendant] clearly expressed a desire to proceed pro se in order to avoid proceeding with counsel he found to be unacceptable.  Contrary to the trial court‘s reasoning here, [Defendant]'s continuing expressions of dissatisfaction with the trial court‘s ruling at the Nelson hearing did not defeat his constitutional right to represent himself rather than be represented by the appointed counsel he had repudiated."  Pasha v. State, __ So.3d ___, 35 Fla.L.Weekly S365 (Fla., No. SC08-1129, 6/24/2010), 2010 WL 2518196.

Trial court erred in denying defendant's request to represent himself in probation revocation hearing based on apparent lack of legal skills.  [Added 6/13/10]

    Defendant in a probation revocation proceeding had appointed counsel.  Defendant became dissatisfied with counsel and filed some pro se motions, including motions to dismiss his counsel.  The trial court held a hearing regarding Defendant's complaints.  The court found that counsel was providing effective representation.  Defendant then asked to represent himself.  "The court questioned [Defendant] at some length about legal issues.  It then denied [Defendant]'s request to proceed pro se, expressing concern about his ability to represent himself, especially considering that [Defendant] faced a possible five-year prison sentence."  Defendant was found to have violated probation.  He appealed.

    The Second DCA reversed.  A trial court's concern should be whether a defendant "knowingly and intelligently" waived his right to counsel, not whether the defendant possesses legal skills.  "The Florida Supreme Court has likewise been clear about the right of self-representation, holding that 'once a court determines that a competent defendant of his or her own free will has 'knowingly and intelligently' waived the right to counsel, the dictates of Faretta [v. California, 422 U.S. 806 (1975)] are satisfied, the inquiry is over, and the defendant may proceed unrepresented.'  State v. Bowen, 698 So.2d 248, 251 (Fla. 1997).  This court, too, has pointed out that 'a defendant does not need to possess the technical legal knowledge of an attorney before being permitted to proceed pro se.'  Fleck v. State, 956 So.2d 548, 549 (Fla. 2d DCA 2007) (quoting Hill v. State, 688 So.2d 901, 905 (Fla. 1996)). Here, the trial court "erred by focusing on whether Thompson was capable of representing himself rather than whether his election to do so was knowingly and intelligently made."  Thompson v. State, 37 So.3d 939 (Fla. 2d DCA 2010).

Trial court erred in denying criminal defendant's request for continuance so he could retain private counsel.  [Added 6/13/10]

    Defendant was arrested for alleged violation of community control.  The hearing was set for less than two months following his arrest.  Immediately before the hearing, Defendant "made his first and only request for a continuance to retain private counsel."  The trial court denied the request, proceeded with the hearing, and found Defendant guilty.  Defendant appealed, contending that the court abused its discretion in denying his motion for continuance.

    Agreeing with Defendant, the Second DCA held that the lower court abused its discretion and reversed.  The appellate court applied the factors listed in Rice v. NITV, LLC, 19 So.3d 1095, 1099 (Fla. 2d DCA 2009):  "1) whether the movant suffers injustice from the denial of the motion; 2) whether the underlying cause for the motion was unforeseen by the movant and whether the motion is based on dilatory tactics; and 3) whether prejudice and injustice will befall the opposing party if the motion is granted."  The court stated:  "[Defendant] had little to no opportunity to raise this issue prior to this hearing because only two months had passed since his arrest.  Also, the record suggests he may only have been in court one prior time, at his first appearance.  The trial court made no finding that the basis for his motion was 'dilatory tactics.'  And although the trial court held that the case had 'been outstanding long enough,' this record does not set forth any possible prejudice or injustice to the State had the trial court granted a continuance so early in the proceedings.  In fact, the State raised no objection to [Defendant]'s request."  Brown v. State, 38 So.3d 212 (Fla. 2d DCA 2010).

Florida law does not provide for court-appointed counsel, or fee payment, in parental rights termination cases where parent has voluntarily surrendered rights to child.  [Added 5/10/10]

    A trial court appointed Lawyer to represent Mother at the beginning of dependency proceedings.  Sixteen months later Mother signed a written surrender of the child and filed a petition for termination of parental rights.  The court then appointed Lawyer to represent Mother through the termination proceedings.  When the case concluded Lawyer sought payment from the Justice Administration Commission ("JAC") for his work in both cases.  JAC paid him for the dependency case but not for the termination case.  Lawyer filed a motion for compensation in the trial court.  The court ordered JAC to pay Lawyer for the termination proceeding as well.  JAC appealed.

    The Second DCA reversed.  "Section 29.007, Florida Statutes (2008), authorizes payment for an attorney's services only when the client has a right to court-appointed counsel.  At issue is whether the mother had a right to court-appointed counsel during these proceedings.  We hold that she did not.  Florida law does not provide for court-appointed counsel in termination proceedings when the parent has voluntarily surrendered her rights to the child."  Justice Administration Comm'n v. Goettel, 32 So.3d 786 (Fla. 2d DCA 2010).

    The appellate court quashed the orders.  It agreed with the First District and the Fifth District that Regional Counsel is not subject to appointment to represent indigent defendants in postconviction proceedings.  See Deen v. Wilson, 1 So.3d 1179 (Fla. 5th DCA 2009) and Office of Criminal Conflict and Civil Regional Counsel, First District, 19 So.3d 447 (Fla. 1st DCA 2009).  "In Deen, 1 So. 3d 1179, the Fifth District considered orders in four trial court cases that had appointed Regional Counsel to represent defendants in postconviction proceedings and had denied Regional Counsel's motions to withdraw.  The court examined the creation of the Office of Regional Counsel and the duties set forth in the enabling statute.  The court recognized that Regional Counsel's 'authority to represent criminal defendants in post-conviction proceedings is not set forth as an assigned duty in section 27.511(5), Florida Statutes (2008).'  Id. at 1182.  It determined that the postconviction court's orders 'assigned new duties to Regional Counsel beyond those established by the Legislature,' and that Regional Counsel's appointment constituted a departure from the essential requirements of law.  Id. at 1183."  Office of Criminal Conflict and Civil Regional Counsel, Second District v. Smith, 33 So.3d 105 (Fla. 2d DCA 2010).

Florida Supreme Court rules that 2-year window under Green v. State does not apply if defendant had actual notice of deportation proceeding more than 2 years before moving to withdraw plea.  [Added 4/23/10]

    Defendant, a Mexican national, entered a no contest plea in 1995 and was convicted.  The plea acknowledged that Defendant understood that the plea could result in his deportation.  Deportation proceedings were brought against Defendant in 2002.  In 2008 Defendant filed a motion to withdraw his plea, alleging that it was not entered knowingly, intelligently, and voluntarily because the deportation consequences were not explained to him in violation of Fla.R.Crim.P. 3.172(c)(8).  (This rule provides:  "Except when a defendant is not present for a plea, pursuant to the provisions of rule 3.180(d), the trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he or she understands:  . . .  (8) that if he or she pleads guilty or nolo contendere, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service. It shall not be necessary for the trial judge to inquire as to whether the defendant is a United States citizen, as this admonition shall be given to all defendants in all cases[.]")

    The circuit court denied Defendant's motion.  He appealed to the First DCA, contending in part that his motion was timely because the Supreme "Court created a two-year window for all defendants whose convictions were already final in State v. Green, 944 So.2d 208 (Fla. 2006)."  The First DCA affirmed, but certified the following question as one of great public importance:  "WHETHER A DEFENDANT MAY OBTAIN THE BENEFIT OF A NEW TWO-YEAR WINDOW PERIOD UNDER STATE V. GREEN, 944 SO.2D 208 (FLA. 2006), IF THE CLAIMANT RECEIVED ACTUAL NOTICE OF A DEPORTATION PROCEEDING MORE THAN TWO YEARS BEFORE THE MOTION TO WITHDRAW PLEA."  Canseco v. State, 12 So.3d 923 (Fla. 1st DCA 2009).

    The Florida Supreme Court affirmed.  "[W]e conclude that Green did not revive claims that were final under Peart [v. State, 756 So.2d 42 (Fla. 2000)], and applies to only those claims that were not yet ripe under Peart that would have been time-barred by Green."

    The Court noted that Peart started the two-year postconviction motion clock running when the defendant had actual or imputed notice of a threatened deportation rather than the date on which his judgment and sentence became final.  Peart thus authorized the bringing of claims that otherwise would have been untimely.  Peart, however, had the effect of deterring defendants from raising claims under rule 3.172(c)(8), because they had two years from notice of a deportation.  To address this problem, in Green the Court "receded from Peart because of these unintended consequences and held that the limitation period for filing a motion to vacate a plea alleging noncompliance with rule 3.172(c)(8) 'commences when the judgment and sentence become final unless the defendant could not, with the exercise of due diligence, have ascertained within the two-year period that he or she was subject to deportation.'  Green 944 So.2d at 210.  It is apparent, then, that our goal in deciding Green was to limit delay in the filing of rule 3.172(c)(8) claims."

    The Court concluded:  "[Defendant]'s argument – that Green provided a two-year window in which all defendants whose cases were final could file a motion to vacate a plea – is not supported by a logical reading of the opinion.  If [Defendant]'s argument was taken to its logical conclusion, all defendants whose cases were final when Green was issued, even those that were disposed of under Peart's guidelines, would be eligible to file a motion to withdraw plea.  Surely such a result was not this Court's intent.  Indeed, no district court has interpreted Green to provide such a result.  Accordingly, we answer the certified question in the negative and approve the decision below."  (Emphasis in original.)  Canseco v. State, __ So.3d ___, 35 Fla.L.Weekly S217 (Fla., No. SC09-1535, 4/22/2010), 2010 WL 1609796.

Trial counsel's failure to object to reclassification of charged crime constituted ineffective assistance; conviction reversed.  [Added 3/18/10]

    Defendant was charged with aggravated battery.  The prosecutor's closing argument and the jury instructions, however, did not distinguish between "aggravated battery causing great bodily harm" (the original charge) and "aggravated battery using a deadly weapon."  Based on the verdict returned by the jury, the trial court reclassified the charge to a first-degree felony.  Defendant's counsel did not object to the reclassification.  Defendant was convicted and sentenced.

    Defendant filed a motion for postconviction relief under Fla.R.Crim.P. 3.850, contending that trial counsel was ineffective for failing to object to the reclassification.  The motion was denied, and Defendant appealed.

    The Third DCA reversed.  "A trial counsel’s failure to object to an illegal sentence meets the Strickland [v. Washington, 466 U.S. 668 (1984)] standard for an ineffective assistance of counsel claim.  See, e.g., Rudolph v. State, 968 So.2d 633 (Fla. 2d DCA 2007); Penn v. State, 941 So.2d 466 (Fla. 1st DCA 2006).  The record in this case clearly shows that [Defendant]’s defense counsel failed to object to the reclassification, which resulted in an illegal sentence.  Defense counsel’s failure to object to this illegal sentence constituted ineffective assistance of counsel.  Thus, the trial court erred in denying [Defendant]’s claim for ineffective assistance of counsel."  Hernandez v. State, 30 So.3d 610 (Fla. 3d DCA 2010).

Second DCA concludes that Fla.R.Crim.P. 3.850 motion alleging trial court's lack of jurisdiction must be filed within 2 year period prescribed by rule; conflict certified.  [Added 2/24/10]

    Criminal Defendant was convicted in 2002.  In 2007 he filed a motion for postconviction relief under Fla.R.Crim.P. 3.850, alleging that "the circuit court's jurisdiction was never properly invoked because 'all the crimes alleged and all the actions pertinent to those crimes' occurred in a single judicial circuit, and thus, the Statewide Prosecutor did not have jurisdiction to prosecute the case."  The postconviction court denied Defendant's motion as untimely.  Defendant appealed.

    The Second DCA affirmed, concluding that the motion was untimely.  "[W]e reject [Defendant]'s contention that a rule 3.850 motion can be filed at any time if it asserts a claim based on the circuit court's lack of jurisdiction.  We reach this conclusion based on the language of the rule itself."  The court continued:  "The rule specifically contemplates a motion asserting a claim grounded on the circuit court's lack of jurisdiction.  Nevertheless, subsection (b), which specifies the time limits within which the motion must be filed, makes no exception to the two-year limit for a motion asserting the circuit court's lack of jurisdiction:  . . .  Although the rule makes no exception for a motion claiming the circuit court did not have jurisdiction to enter the judgment or sentence, it does list three circumstances under which any motion can be filed beyond the two-year limit.  See Fla.R.Crim.P. 3.850(b)(1)-(3).  [Defendant]'s motion, however, does not allege any of those circumstances.  Accordingly, his motion was untimely."  (Quotation of rule omitted.)

    The Second DCA certified conflict with decisions of other DCAs.  See Gunn v. State, 947 So.2d 551 (Fla. 4th DCA 2006); Harris v. State, 854 So.2d 703 (Fla. 3d DCA 2003); Harrell v. State, 721 So.2d 1185 (Fla. 5th DCA 1998).  Carbajal v. State, 28 So.3d 187 (Fla. 2d DCA 2010).

Claim for postconviction relief to set aside 1978 uncounseled conviction was properly denied as being untimely under Fla.R.Crim.P. 3.850.  [Added 2/23/10]

    Appellant sought to set aside his 1978 conviction for two misdemeanors.  He alleged that he was not represented by counsel and that the record did not indicate that he waived counsel.  The trial court treated the claim as one for postconviction relief under Fla.R.Crim.P. 3.850.  The court denied the motion as untimely, but certified a question to the First DCA as one of great public importance.  The appellate court rephrased the question as:  "Whether a conviction procured without affording the accused the right to counsel or without securing from the accused a proper waiver of the right to counsel is void and may therefore be collaterally attacked at any time, the time limits of Florida Rule of Criminal Procedure 3.850(b) notwithstanding."

    The First DCA answered the rephrased question in the negative.

    The court rejected Appellant's contention that the 1978 judgment was "void because the record does not show that he knowingly and intelligently waived his right to counsel, or that the trial court conducted a Faretta inquiry back in 1978, and that therefore the trial court lacked jurisdiction to proceed."  (Footnote omitted.)  This argument, however, was "baseless."  See Waley v. Johnston, 316 U.S. 101 (1942); Wainwright v. Sykes, 433 U.S. 72 (1977).

    The court also noted that "[t]his case highlights the importance of a time limit for filing postconviction motions.  The only surviving document from the 1978 proceeding is the two-page Judgment and Sentence.  Whatever other record or transcript of the proceeding that was made no longer exists.  Its unlikely that anyone involved in the case other than Appellant has any recollection of the case and, therefore, it would likely be impossible to determine with any certainty at this point whether the trial court filed the statement required by rule 3.111(b)(1) (1977) or whether Appellant was properly advised of and waived his right to counsel."  Solano v. State, 32 So.3d 648 (Fla. 1st DCA 2010).

Florida Supreme Court rules that defendant's right to self-representation was not violated when trial court appointed special counsel to develop penalty-phase mitigation.  [Added 2/12/10]

    Barnes was charged with murder.  After conducting a Faretta [v. California, 422 U.S. 806 (1975)] hearing, the trial court permitted Barnes to represent himself.  Barnes was found guilty.  At the penalty phase, Barnes refused to present any mitigation evidence.  The court appointed special counsel to investigate and present mitigation.  Barnes was sentenced to death.

    On appeal Barnes contended, inter alia, that the trial court erred by appointing mitigation counsel over his objection.  The Florida Supreme Court affirmed.  "Because the trial court and this Court each has a constitutional obligation to ensure that Barnes received individualized sentencing and that the death penalty is fairly and constitutionally imposed, Barnes' right to self-representation was not violated by the appointment of independent counsel under the facts and circumstances present in this case.  Mitigation counsel was appointed, not to supplant Barnes as his own counsel, but to assist the court by presenting mitigation evidence where Barnes refused to do so.  The mitigation was not in conflict with any evidence presented by Barnes and was not in conflict with his mitigation theory that he confessed and took responsibility."

    The Court continued:  "We decline to hold, as Barnes requests, that a trial court may never consider other mitigation contained in the record or appoint special mitigation counsel to assist the court, where a pro se defendant's refusal to present mitigating evidence impedes or prevents the trial court's exercise of its constitutional duty to provide individualized sentencing.  Thus, relief is denied on this claim."  Barnes v. State, 29 So.3d 1010 (Fla. 2010).

Florida Supreme Court addresses self-representation and standby counsel issues in appeal of death penalty case.  [Added 1/9/10]

    A criminal Defendant convicted of murder and sentenced to death raised issues on appeal relating to his right of self-representation and the assistance of standby counsel.  The Florida Supreme Court affirmed the conviction.

    Regarding self-representation, Defendant contended that the trial court's Faretta [v. California, 422 U.S. 806 (1975)] and Nelson [v. State, 274 So.2d 256 (Fla. 4th DCA 1973)] inquiries were defective and thus resulted in a violation of the 6th Amendment to the U.S. Constitution.  The Court emphasized that a Faretta inquiry is designed to address whether a defendant knowingly and intelligently waives the right to counsel, not whether that defendant can prepare an effective legal defense.  "[W]e have held that the ability to prepare a competent legal defense and technical legal knowledge (or lack thereof) are not relevant issues in a self-representation inquiry.  Accordingly, we conclude that the Faretta inquiry conducted by the trial court here was sufficient."  (Emphasis by Court.)

    Defendant's Nelson argument also was rejected.  "The trial court ultimately determined that a difference of trial strategy, not incompetence, was the reason discharge was sought.  Accordingly, we conclude that any further Nelson inquiry, which is necessary only when the asserted reason for the discharge of appointed counsel is incompetence, was not required."

    Further, Defendant's contention that his access to standby counsel was improperly limited was rejected because it had not been preserved for appellate review.  Nevertheless, the Court discussed the issue and concluded "that the trial court did not improperly restrict the role of standby counsel here.  [Defendant] was abundantly clear when he expressed his request to represent himself during the penalty phase.  Further, when the trial court granted [Defendant]’s request to represent himself, he was advised that standby counsel would be available to him if he had any questions.  Therefore, it cannot be assumed that [Defendant] expected or even desired standby counsel to independently participate in an unsolicited manner during any portion of the penalty phase.  Finally, and perhaps most telling, when the trial court instructed that standby counsel not independently participate in an unsolicited manner, [Defendant] was informed that he could ask his standby counsel any questions that he might have.  [Defendant] neither asked standby counsel any questions nor did he object to the trial court’s censure."  McKenzie v. State, 29 So.3d 272 (Fla. 2010).

On direct appeal, Second DCA reverses conviction based on ineffective assistance of counsel apparent on face of record.  [Added 12/7/09]  --  Lowery v. State, 22 So.3d 745 (Fla. 2d DCA 2009).

On direct appeal, Fifth DCA reverses conviction on for ineffective assistance apparent on face of record.  [Added 11/18/09]  --  Spicer v. State, 22 So.3d 706 (Fla. 5th DCA2009).

Second DCA cautions postconviction petitioners that allegations of "fundamental error" actually could be harmful to their claims.  [Added 11/15/09]  --  Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009).

Trial court committed reversible error by not offering assistance of counsel to defendant appearing pro se at restitution hearing.  [Added 10/16/09]  --  White v. State, 21 So.3d 77 (Fla. 1st DCA 2009).

Florida Supreme Court amends Florida Rule of Criminal Procedure 3.111(d) concerning waiver of counsel by criminal defendants suffering from severe mental illness.  [Added 9/1/09]  --  In re: Amendments to Florida Rule of Criminal Procedure 3.111, 17 So.3d 272 (Fla. 2009).

Florida Supreme Court rules that convicted defendant's motion to withdraw plea need not contain specific request to discharge counsel.  [Added 8/28/08]  --  Sheppard v. State, 17 So.3d 275 (Fla. 2009).

Motion signed by criminal defendant's lawyer is not valid waiver of defendant's right to jury trial.  [Added 8/28/09]  --  Racine v. State, 16 So.3d 955 (Fla. 5th DCA 2009).

Postconviction court should have appointed counsel after defendant claimed conflict with his lawyer, who had since left public defender's office.  [Added 8/14/09]  --  Howard v. State, 17 So.3d 774 (Fla. 2d DCA 2009).

Florida Supreme Court addresses claim that defense counsel was ineffective for failing to spend enough time preparing defendant to testify.  [Added 7/29/09]  --  Beasley v. State, 18 So.3d 473 (Fla. 2009).

Florida Supreme Court rules that conflict over mitigation strategy between capital defendant's counsel was not per se ineffective assistance.  [Added 7/22/09]  --  Chavez v. State, 12 So.3d 199 (Fla. 2009).

Law requiring counties to fund Regional Conflict Counsel offices held unconstitutional.  [Added 7/21/09]  --  Lewis v. Leon County, 15 So.3d 777 (Fla. 1st DCA 2009).

Neither trial counsel's personal dislike of client nor client's filing of Bar complaint resulted in ineffective assistance.  [Added 7/15/09]  --  Hutchinson v. State, 17 So.3d 696 (Fla. 2009).

On rehearing, Third DCA rules that convicted defendant did not raise cognizable ineffective assistance claim by alleging he rejected plea offer because counsel advised him he would win at trial.  [Added 7/8/09]  --  Garcia v. State, 21 So.3d 30 (Fla. 3d DCA 2009) (on rehearing).

Error to summarily deny claim that defense counsel was ineffective for not moving to disqualify trial judge, who had previously prosecuted defendant.  [Added 6/30/09]  --  Clayton v. State, 12 So.3d 1259 (Fla. 2d DCA 2009).

Trial judge erred by forcing criminal defendant to choose between testifying further or giving up lawyer.  [Added 6/28/09]  --  Wilson v. State, 12 So.3d 292 (Fla. 4th DCA 2009).

Fourth DCA urges Florida Supreme Court to impose page limit on postconviction motions.  [Added 6/16/09]  --  Ezer v. State, 10 So.3d 1175 (Fla. 4th DCA 2009).

Motion for extension of time can be filed after 2-year period for filing Rule 3.850 postconviction relief motion has expired.  [Added 5/5/09]  --  Suarez v. State, 8 So.3d 1226 (Fla. 3d DCA 2009).

First DCA adopts new procedure for handling petitions for belated appeals that present facially sufficient claims for relief based on alleged ineffectiveness of trial counsel.  [Added 5/1/09]  --  Staley v. State, 12 So.3d 778 (Fla. 1st DCA 2009).

Criminal defense counsel's alleged misadvice about consequences of future violation of probation is not ineffective assistance of counsel.  [Added 4/5/09]  --  Gusow v. State, 6 So.3d 699 (Fla. 4th DCA 2009).

Criminal defense counsel's failure to object to State's peremptory striking of racial minority jurors does not constitute ineffective assistance.  [Added 3/31/09]  --  Jones v. State, 10 So.3d 140 (Fla. 4th DCA 2009).

Motion to withdraw no contest plea is cognizable, independent of an ineffective assistance claim, despite failure to allege that plea would not have been entered but for counsel's mistaken advice.  [Added 2/13/09]  --  Panchu v. State, 1 So.2d 1243 (Fla. 4th DCA 2009).

Limited Faretta hearing conducted after defendant was allowed to discharge counsel results in reversal of conviction.  [Added 10/7/08]  --  Morgan v. State, 991 So.2d 984 (Fla. 4th DCA 2008).

Resolving conflict among DCAs, Supreme Court concludes that trial court and defense counsel were not required to advise defendant that driver's license revocation was consequence of guilty plea.  [Added 9/23/08]  --  Bolware v. State, 995 So.2d 268 (Fla. 2008).

Criminal defendant's second appointed lawyer did not have "conflict" by declining to file motion to withdraw client's guilty plea.  [Added 9/4/08]  --  Gonzales v. State, 993 So.2d 55 (Fla. 5th DCA 2008).

Resolving conflict among DCAs, Florida Supreme Court clarifies that Strickland standard governs ineffective assistance claims based on counsel's failure to disqualify trial judge.  [Added 9/2/08]  --   Thompson v. State, 990 So.2d 482 (Fla. 2008).

Criminal defense counsel not ineffective for not advising client about "collateral consequences" of guilty plea such as gain time credits.  [Added 9/2/08]  --  State v. Rodriguez, 990 So.2d 600 (Fla. 3d DCA 2008).

Third DCA addresses when, in light of State v. Green, defendant may withdraw prior plea due to counsel's alleged failure to advise of possible immigration consequences of plea.  [Added 7/29/08]  --  State v. Freijo, 987 So.2d 190 (Fla. 3d DCA 2008) (on rehearing); question of great public importance certified.  See also Pena v. State, 980 So.2d 542, 545 (Fla. 4th DCA 2008) (2-year window in Green applies "to litigants who had not yet been made aware of pending removal proceedings or who had not yet made any attempt to have their pleas withdrawn"); State v. DeArmas, 988 So.2d 156 (Fla. 1st DCA 2008) (Green did not open new two-year window for filing of motion to withdraw plea by defendant with over 2 years of actual knowledge of immigration consequences of challenged plea).

Postconviction motion based on court's failure to advise of deportation consequences of plea must allege that plea was only basis for deportation.  [Added 7/21/08]  --  Forrest v. State, 988 So.2d 38 (Fla. 4th DCA 2008).

Per Florida Supreme Court, evidentiary hearing may be required for ineffective assistance claim based on counsel's advice regarding plea offer.  [7/12/08]  --  Morgan v. State, 991 So.2d 835 (Fla. 2008).

Court erred by summarily denying motion for postconviction relief that was based on the "messy car defense."  [Added 7/6/08]  --  Balmori v. State, 985 So.2d 646 (Fla. 2d DCA 2008).

Fla.R.Crim.P. 3.850 motion based on misadvice regarding collateral civil consequences of plea must be filed within 2 years after conviction is final, per Fourth DCA.  [Added 6/14/08]  --  Marshall v. State, 983 So.2d 680 (Fla. 4th DCA 2008) (en banc).

Per Florida Supreme Court, partial deprivation of counsel during sentencing hearing is not a "sentencing error" as contemplated by Fla.R.Crim.P. 3.800(b).  [Added 6/4/2008]  --  Jackson v. State, 983 So.2d 562 (Fla. 2008).

Fourth DCA addresses proper test in reviewing ineffective assistance claim based on counsel's alleged failure to preserve error for appeal.  [Added 5/17/08]  --  Diaz v. State, 980 So.2d 1275 (Fla. 4th DCA 2008).

Allegation of wrong advice by trial counsel about effect of plea on sentence for separate, already-committed crime is cognizable an ineffective assistance claim, per Florida Supreme Court.  [Added 5/15/08]  --  Ey v. State, 982 So.2d 618 (Fla. 2008) (opinion on rehearing).

Postconviction motion alleging ineffective assistance of counsel can be used to challenge allegedly vindictive sentencing.  [Added 4/22/08]  --  Evans v. State, 979 So.2d 383 (Fla. 5th DCA 2008).

Ineffective assistance of counsel claims under Fla.R.Crim.P. 3.850 can arise out of probation revocation proceedings.  [Added 3/26/08]  --  Ganey v. State, 977 So.2d 698 (Fla. 1st DCA 2008).  NOTE:  See also Ford v. State, 989 So.2d 691 (Fla. 1st DCA 2008) ("appellant may raise ineffective assistance of counsel at a probation revocation proceeding").

Defendant's familiarity with criminal justice system inot a substitute for adequate Faretta hearing.  [Added 3/19/08]  --  Flowers v. State, 976 So.2d 665 (Fla. 1st DCA 2008).

Florida Supreme Court rules that Legislature's creation of 5 Offices of Criminal Conflict and Civil Regional Counsel does not violate state constitution.  [Added 3/14/08]  --  Crist v. Florida Association of Criminal Defense Lawyers, Inc., 978 So.2d 134 (Fla. 2008).

Filing petition for discretionary review based on PCA with citation to case pending review in Florida Supreme Court tolls time for filing Fla.R.Crim.P. 3.850 motion.  [Added 2/15/08]  --  Mullins v. State, 974 So.2d 1135 (Fla. 3d DCA 2008).

In postconviction plea agreement defendant may validly waive right to seek postconviction relief.  [Added 1/8/08]  --  Stahl v. State, 972 So.2d 1013 (Fla. 2d DCA 2008). 

Trial court erred by denying criminal defendant's request to replace counsel who was repeatedly unprepared to try case.  [Added 12/20/07]  --  Orta v. State, 970 So.2d 478 (Fla. 5th DCA 2007).

Florida Supreme Court discusses conflicts of interest and imputation of conflicts in context of ineffective assistance of counsel claim.  [Added 11/19/07]  --  Connor v. State, 979 So.2d 852 (Fla. 2007) (revised opinion).

Questioned fee arrangement does not result in reversal of conviction, but defense counsel's handling of murder weapon does.  [Added 11/14/07]  --  Alessi v. State, 969 So.2d 430 (Fla. 5th DCA 2007).

Trial counsel's failure to secure severance of 2 charges results in reversal of defendant's conviction.  [Added 11/17/07]  --  McNabb v. State, 967 So.2d 1086 (Fla. 1st DCA 2007).

Florida Supreme Court resolves conflict between Districts regarding when trial court must permit amendment of postconviction motion that was dismissed for pleading deficiency.  [Added 11/7/07]  --  Spera v. State, 971 So.2d 754 (Fla. 2007).  NOTE:  The Second DCA has held that Spera does not apply retroactively.  Davis v. State, 993 So.2d 1045 (Fla. 2d DCA 2008).

On direct appeal the court reverses a conviction for ineffective assistance that was apparent on face of record.  [Added 10/25/07]  --  Aversano v. State, 966 So.2d 493 (Fla. 4th DCA 2007).  See also Berdecia v. State, 971 So.2d 846 (Fla. 3d DCA 2007) (appellate court resolved ineffective assistance in direct appeal rather than remanding for filing of motion under Fla.R.Crim.P. 3.850).

Criminal defendant's experience with self-representation cannot substitute for Faretta hearing.  [Added 9/20/07]  --  O'Neal v. State, 963 So.2d 959 (Fla. 4th DCA 2007).

Florida Supreme Court clarifies that trial counsel is constitutionally ineffective for failing to preserve challenge to potential juror only where that juror is actually biased.  [Added 7/10/07]  --  Carratelli v. State, 961 So.2d 312 (Fla. 2007).

Citing Rule of Professional Conduct 4-1.14, Fourth DCA affirms trial court's refusal to appoint attorney ad litem for allegedly incompetent father who was represented by counsel in dependency case.   [Added 6/25/07]  --  S.K. v. Dept. of Children and Families, 959 So.2d 1209 (Fla. 4th DCA 2007).

In self-representation inquiry, proper legal standard is defendant's competence to waive right to counsel, not defendant's competence to represent self.  [Added 5/24/07]  --  Fleck v. State, 956 So.2d 548 (Fla. 2d DCA 2007).

Counsel not ineffective for filing untimely motion to disqualify trial judge, who would have granted timely motion but was not shown to be actually biased; conflict certified with other Districts.  [Added 3/7/07]  --  Thompson v. State, 949 So.2d 1169 (Fla. 1st DCA 2007).

Motion to withdraw plea by represented defendant treated as "nullity" unless motion includes unequivocal request to discharge counsel.  [Added 1/23/07]  --  Kerney v. State, 945 So.2d 657 (Fla. 2d DCA 2007).

Defendant whose lawyer filed Anders brief and withdrew, with defendant not filing his own brief, can now seek relief for ineffective assistance in Fourth District.  [Added 1/4/07]  --  Jackson v. State, 946 So.2d 83 (Fla. 4th DCA 2006).

No cognizable "ineffective assistance of counsel" claim in administrative proceeding for revocation of state-issued professional license.  [Added 12/6/06]  --  Mullins v. Dept. of Law Enforcement, 942 So.2d 998 (Fla. 5th DCA 2006).

Florida Supreme Court rules that criminal defense lawyer who previously represented prosecution witness in unrelated matter did not render ineffective assistance.  [Added 11/14/06]  --  Sliney v. State, 944 So.2d 270 (Fla. 2006).

Ineffective assistance of counsel for lawyer to elicit damaging character evidence against his client without then trying to remedy effects of disclosure.  [Added 10/18/06]  --    Glancy v. State, 941 So.2d 1201 (Fla. 2d DCA 2006).

Trial court abused discretion by denying criminal defendant's request for self-representation on ground that defendant was not prepared or qualified.  [Added 10/6/06]  --  Reddick v. State, 937 So.2d 1279 (Fla. 4th DCA 2006).

Florida Supreme Court notes that criminal defendants have no constitutional right to confer with counsel during their trial testimony.  [Added 9/1/06]  --  Branch v. State, 952 So.2d 470 (Fla. 2006).

Criminal defense counsel's affirmative misadvice about immediate but "collateral" consequence of plea can constitute ineffective assistance.  [Added 7/7/06]  --  Johnson v. State, 933 So.2d 1203 (Fla. 5th DCA 2006).

Decisional change is not newly discovered fact for purposes of Fla.R.Crim.P. 3.850 motion, per Florida Supreme Court.  [Added 6/29/06]  --  Coppola v. State, 938 So.2d 507 (Fla. 2006).

Defense counsel's strategy to be candid by disclosing details about client's priors that impugned client's credibility was "patently unreasonable" and constituted ineffective assistance.  [Added 6/17/06]  --  Bowers v. State, 929 So.2d 1199 (Fla. 2d DCA 2006).

Allegations of wrong advice by trial counsel about possible effect of plea on sentence for future (i.e., not yet committed) criminal acts not cognizable as claim for ineffective assistance, per Florida Supreme Court.  [Added 4/25/06]  --  State v. Dickey, 928 So.2d 1193 (Fla. 2006).

Criminal defendant's filing of federal suit against his lawyer is not conflict that requires appointment of new counsel.  [Added 3/7/06]  --  Miller v. State, 921 So.2d 816 (Fla. 5th DCA 2006).

Trial court erred in not appointing counsel for indigent father facing petition to terminate parental rights.  [Added 1/4/06]  --  G.C. v. W.J., 917 So.2d 998 (Fla. 1st DCA 2005).

Failure to advise of pretrial intervention program's existence constitutes ineffective assistance; defendant prejudiced by resulting inability to make informed decision on plea offer.  [Added 10/31/05]  --  Julien v. State, 917 So.2d 213 (Fla. 4th DCA 2005).

Defendant's assertion that counsel advised him to reject plea offer and go to trial, resulting in harsher sentence, does not state ineffective assistance claim.  [Added 8/29/05]  --  Dines v. State, 909 So.2d 521 (Fla. 2d DCA 2005).

Lawyer did not provide ineffective assistance by failing to perpetrate fraud on court.  [Added 7/29/05]  --  Morgan v. State, 911 So.2d 162 (Fla. 3d DCA 2005).

Motion for postconviction relief alleging conflict from trial counsel's attempt to secure rights to "life story fails.  [Added 12/6/04]  --  Brown v. State, 894 So.2d 137 (Fla. 2004).

Ineffective assistance for appellate counsel to fail to argue issue subsequently determined by case law but "foreshadowed" by existing cases.  [Added 12/1/04]  --  Davis v. State, 886 So.2d 332 (Fla. 5^th DCA 2004).

Not permitting defendant to confer with counsel during short recess violated right to counsel under Florida Constitution, but was harmless error.  [Added 9/20/04]  --  Leerdam v. State, 891 So.2d 1046 (Fla. 2d DCA 2004).

Appellate counsel's failure to raise issue addressed by other districts (favorably in 2 of 3) constituted ineffective assistance.  [Added 8/30/04]  --  Kist v. State, 900 So.2d 571 (Fla. 2d DCA 2004).

Supreme Court outlines procedure for proper determination of Fla.R.Crim.P. 3.850 claims.  [Added 6/30/04]  --  Jacobs v. State, 880 So.2d 584 (Fla. 2004).

"Ineffective assistance" claim not cognizable in professional licensure action.  [Added 6/23/04]  -- Prieto v. Florida Dept. of Business & Professional Regulation, 876 So.2d 633 (Fla. 3d DCA 2004).

Ineffective assistance claim for failure to call witness facially insufficient if does not allege witness was available to testify at trial, per Florida Supreme Court.  [Added 6/3/04]  --  Nelson v. State, 875 So.2d 579 (Fla. 2004).

Criminal defense lawyer's conduct in advising client to reject favorable plea offer and go to trial could constitute ineffective assistance.  [Added 11/28/03]  --  Sharpe v. State, 861 So.2d 483 (Fla. 3d DCA 2003).