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)

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]
Defendant was convicted of a murder that occurred in 1974 and sentenced to death.  He was tried with co-defendants, and ultimately was the only one of the defendants who remained under a death sentence.  The postconviction court granted Defendant’s motion for new trial on several grounds including 2 different conflicts of interest.
The Supreme Court affirmed.  Defendant’s trial counsel labored under an actual conflict of interest because counsel solicited representation of 2 co-defendants prior to Defendant’s trial.  The postconviction court found that this created an actual conflict of interest that adversely affected counsel’s performance:  “[Trial counsel]’s interest in and actual solicitation of [Defendant’s 2 co-defendants] for appellate representation while representing Defendant was inconsistent with his obligation to Defendant.  For trial counsel to distinguish Defendant from his co-defendants at trial would necessitate placing one or the other in a more culpable light.  Despite the nature of the trial, the charges, and the crime, Defendant’s trial counsel did not cross-examine either co-defendant at Defendant’s trial.  Defendant’s trial counsel made no attempt to distinguish the culpability of Defendant and his co-defendants at trial.”
Another conflict existed as well.  Trial counsel, who was married at the time, was having an affair with Defendant’s sister, Ms. Turner.  “This affair, which was unknown to [Defendant], created turmoil in [counsel]’s law office during the time of the trial.  The postconviction court observed that the relationship ‘created a substantial risk’ that [counsel]’s ‘representation of Defendant was materially limited by his responsibilities to Ms. Turner or his own personal interest.’” 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]
Criminal Defendant pleaded no contest to a charge of traveling to meet a minor for unlawful sexual activity and, as a result, was designated as a sexual offender.  Defendant filed an ineffective assistance of counsel motion under Fla.R.Crim.P. 3.850, alleging that trial counsel “affirmatively misadvised him that designation as a sexual offender, rather than as a sexual predator, would preclude his photograph from being posted” on the FDLE website and that, but for this alleged misadvice, he would not have entered the plea.  The postconviction court denied the motion.
The Fifth reversed and remanded.  “Although counsel is generally not required to advise a defendant of the collateral consequences of a plea, affirmative misadvice regarding collateral consequences may provide a basis for postconviction relief.  . . .  Further, “a defendant’s reliance on trial counsel’s mistaken assurances that a conviction would not cause the defendant’s photograph to be placed on the Internet has been found to establish good cause for the withdrawal of a plea.”  (Citations omitted.) 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]
Criminal Defendant, represented by a court-appointed lawyer, entered a plea.  Sentencing was set for November 14.  A week before the hearing private counsel was retained by Defendant’s family and filed a motion to continue the sentencing so that he could have time to prepare.  The court-appointed lawyer moved to withdraw.  At a hearing on the motion to withdraw, the court asked private counsel if he was taking the case.  Private counsel replied that he would not take the case unless the court granted a continuance.  The court denied the continuance.  Represented by court-appointed counsel, Defendant was sentenced to 40 years in prison.  Defendant appealed.
The Fourth DCA reversed.  Not every request to substitute counsel on the eve of trial must be granted, but the trial court is required to make an adequate inquiry into the circumstances and “make ‘proper findings to show that the defendant’s constitutional right [to counsel] is not being arbitrarily denied.’”  (Citation omitted.)  However, “in this case, the trial court did not make any inquiry of appellant or counsel.  The trial court did not make any inquiry ‘into the surrounding circumstances’ nor make a clear finding that appellant’s constitutional rights were not arbitrarily denied.” 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]
The Fourth DCA initially per curiam affirmed a postconviction court’s denial of a convicted defendant’s Fla.R.Crim.P. 3.850 motion alleging ineffective assistance of trial counsel.  At the evidentiary hearing below, trial counsel “did not testify at the evidentiary hearing, but the trial court considered a transcript of his deposition testimony taken before the hearing.”
Defendant moved for rehearing, asking the Fourth DCA “to grant rehearing or certify as a question of great public importance the issue of whether a trial court can consider deposition testimony of trial counsel in proceedings under rule 3.850 which include an evidentiary hearing.”  The appellate court denied the motion.  “Nothing in rule 3.850 or interpretive case law precludes the trial court from considering transcripts which were part of the court record along with live testimony presented at the evidentiary hearing on a claim.  Appellant’s post-conviction counsel took the deposition of trial counsel and apparently the transcript was filed by the court reporter.  As part of the court file, it was properly considered.” 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]
A criminal Defendant who had written the trial judge a letter expressing dissatisfaction with his appointed counsel subsequently wrote another letter asking for leave to proceed “as self-counsel/with appointment of standby counsel.”  The trial court held a hearing, after which the court ruled that counsel would continue to represent Defendant but made no reference to the self-representation request.  Defendant was convicted and appealed.
The Fourth DCA reversed.  “It appears the trial judge combined the Faretta and Nelson rulings, even though they involve distinct issues.”  The appeals court explained:  “When a defendant wants to discharge counsel, saying that the lawyer is ineffective, the trial court conducts a Nelson inquiry to determine whether appointed counsel is rendering effective legal assistance to the defendant.  . . .  If a defendant has made an unequivocal request to represent himself, the purpose of a Faretta hearing is to ‘determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel.’”  (Citations omitted.)  Here, the court did not address Defendant’s unequivocal request to represent himself.  The error “is structural and not subject to a harmless error review.” 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., a mother, was appointed counsel to represent her in a termination of parental rights (“TPR”) proceeding.  At the conclusion of the proceeding, the court orally announced its ruling terminating her parental rights.  (A written order was entered later.)  Appellate counsel was appointed, and alleged that the trial court committed reversible error by failing to inform T.D. of her right to assert an ineffective assistance of counsel claim in the circuit court.
The Fifth DCA disagreed and affirmed.  In J.B. v. Dept. of Children and Families, 170 So.3d 780 (Fla. 2015), the Supreme Court established an interim procedure for ineffective assistance claims in TPR proceedings.  The Court directed trial courts to orally advise parents with appointed counsel of their right to file an ineffective claim in circuit court, and to provide such information in the written judgment.
Despite the trial court’s failure to orally advise T.B. of her right to file an ineffective assistance claim, the information was included in the written judgment.  “At no time did [T.D.] file a motion alleging ineffective assistance of counsel, nor did her conflict-free appellate counsel . . . represent in the initial brief that such a motion had been prepared and that jurisdiction should be relinquished to allow the trial court to belatedly consider such a motion.”  Under these circumstances, the Fifth DCA was “unwilling to reverse or delay an otherwise unchallenged final judgment under the present circumstances.  While the trial court failed to provide oral notice of the right to assert an ineffective assistance of counsel claim, Appellant has made no effort to demonstrate even a prima facie claim of ineffective assistance of trial counsel.” 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]
Defendant was convicted of attempted armed robbery while carrying a firearm.  He had requested that the trial court instruct the jury on the lesser-included offense of attempted armed robbery with a weapon, but the court refused.
Defendant petitioned for habeas corpus relief, alleging that his appellate counsel was ineffective.  The Fourth DCA granted the petition, “concluding that counsel was ineffective in failing to raise on direct appeal the trial court’s error in denying his request for a jury instruction on a necessarily lesser-included offense to the main charge.”  The appeals court noted that “the failure to raise on appeal the denial of a properly preserved meritorious request for an instruction on a lesser-included offense would constitute deficient performance which substantially undermines the appellate process, because, if correct, the matter would require reversal for a new trial.”
Because the ineffective assistance was per se reversible error, the case was remanded for a new trial. 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]
The Florida Supreme Court resolved a conflict among the District Courts of Appeal regarding whether a person is entitled to counsel in direct criminal contempt proceedings before incarceration is imposed.  The Second and Fourth DCAs ruled that there was such a right, while the First DCA rejected that argument.  Compare Al-Hakim v. State, 53 So.3d 1171 (Fla. 2d DCA 2011), Woods v. State, 987 So.3d 669 (Fla. 2d DCA 2007), and Hayes v. State, 592 So.2d 327 (Fla. 4th DCA 1992) with Plank v. State, 130 So.3d 289 (Fla. 1st DCA 2014).
“We resolve the conflict regarding whether a defendant has the right to the appointment of counsel in direct criminal contempt proceedings before incarceration is imposed as punishment and hold that a trial court is not required to appoint counsel or give the individual an opportunity to seek counsel in a direct criminal contempt proceeding, even if incarceration is imposed as punishment, as long as the period of incarceration does not exceed six months.  Accordingly, we approve the holding of the First District that a trial court does not err by failing to provide a contemnor with the opportunity to seek counsel prior to imposing incarceration as a punishment in direct criminal contempt proceedings.”
The Court explained:  “Where a court’s ability to undertake its essential functions is jeopardized, the court must be able to act swiftly to ensure it can fulfill its obligations and preserve the dignity of court proceedings.  Imposing a mandatory requirement that counsel be appointed or that the contemnor have the opportunity to obtain counsel could interfere with the court’s ability to act swiftly to vindicate its authority.”
Nevertheless, the lower court erred in finding Plank guilty of direct criminal contempt because the conduct at issue involved indirect criminal contempt. 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]
Defendant was convicted of burglary and aggravated battery.  He alleged in his postconviction motion that trial counsel “was ineffective in failing to consult and hire an ophthalmologist expert to rebut the State’s claim that the victim suffered permanent eye damage as an element of aggravated battery.”  The State responded that Defendant’s motion was insufficiently pleaded, asserting that Nelson v. State, 875 So.2d 579 (Fla. 2004) required Defendant to identify the witness by name and allege that he would have been available to testify.  The State asserted that Nelson applied to both fact and expert witnesses.
The postconviction court struck Defendant’s motion but the Fourth DCA reversed, concluding that the motion was facially sufficient.  The State sought Supreme Court review based on alleged conflict with Nelson.
The Supreme Court approved the DCA’s opinion.  Pointing out that “[f]act witnesses and expert witnesses are distinguishable,” the Court held “that a motion filed pursuant to rule 3.850 alleging that trial counsel was ineffective for failing to consult or present an expert in a named field of expertise need not, in every case, name a specific expert and attest that the specific expert would have been available to testify at trial.” 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]
The state sought to terminate Father’s parental rights.  Father was represented by appointed counsel, who did not appear at the manifest best interests hearing.  Counsel had emailed the court indicating that “he had nothing more to contribute and asked that his appearance be waived.”  The court proceeded with the hearing, at which Father was unrepresented.  “When the father asked the court a few questions, the court responded that he would have to contact his attorney and discuss the issue with him. Yet, the court never advised the father of his statutory and constitutional right to counsel – a right the father never waived.  This error requires reversal of the order terminating the father’s parental rights.” D.V. v. Dept. of Children and Families, __ So.3d __ (Fla. 4th DCA, No. 4D15-3445, 3/2/2016), 2016 WL 805306.

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]
Defendant was charged with murder.  After Defendant stated that he wanted to be his own attorney, the judge held a limited Faretta hearing and allowed Defendant to represent himself, with standby counsel.
After jury selection, Defendant cross-examined “the three most critical witnesses.”  He then permitted his counsel to conduct the rest of the trial.  Defendant was convicted.  He appealed, arguing that the Faretta inquiry was inadequate.
The Third DCA agreed and reversed.  “The dispositive issue before us is whether the trial judge’s familiarity with the defendant from prior hearings in the  case excused his admitted failure to conduct an adequate Faretta hearing before permitting the defendant to represent himself at trial.  . . .  We find that it does not, and reverse and remand this case for a new trial.”
The court rejected the State’s contention that Defendant was not entitled to a Faretta hearing because he received hybrid representation.  “[E]ven in the case of hybrid representation, ‘Faretta warnings are required whenever the trial court permits a defendant to undertake a portion of his defense that is a ‘core function’ of a lawyer.’  Boyd v. State, 45 So.3d 557, 559 (Fla. 4th DCA 2010) (citing Brooks v. State, 703 So.2d 504, 505-06 (Fla. 1st DCA 1997)).”
The appeals court noted that, although standby counsel was present during the Faretta hearing, he was “ethically prohibited from voicing a challenge to the adequacy of the Faretta hearing or ability of his client to represent himself, citing Rule 4-1.2(a) (“lawyer shall abide by a client’s decision concerning the objectives of representation”). 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]
Defendant, who pleaded guilty to murder and was sentenced to death more than 20 years ago, filed a successive motion for postconviction relief alleging that newly discovered evidence rendered his guilty plea invalid.  Specifically, Defendant alleged that he would not have entered the plea if he had known of questions surrounding forensic testing performed by a certain FBI examiner.
Typically, if a defendant seeks to make a newly discovered evidence claim, the defendant must timely file a postconviction motion to vacate the judgment and sentence and meet the 2-prong test in Jones v. State, 591 So.2d 911 (Fla. 1991).  The problem in this case, however, is applying that test “in a case where a defendant has entered a plea because there is no trial at which evidence was introduced.”
 Accordingly, the Court fashioned a test based in part on the situation in which a defendant seeks to vacate a judgment and sentence based on alleged ineffective assistance of counsel.  “We likewise establish a similar two-prong test for determining postconviction claims for newly discovered evidence relating to guilty pleas which adopts the first prong of the Jones test and the second prong from Grosvenor [v. State, 874 So.2d 117 (Fla. 2004)].  First, the evidence must not have been known by the trial court, the party, or counsel at the time of the plea, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence.  Second, the defendant must demonstrate a reasonable probability that, but for the newly discovered evidence, the defendant would not have pleaded guilty and would have insisted on going to trial.  ‘[I]n determining whether a reasonable probability exists that the defendant would have insisted on going to trial, a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial.’ Grosvenor, 874 So. 2d at 1181-82.” 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]
Defendant was charged with drug offenses.  While Defendant was on the witness stand, State-requested sidebar conference was held outside the presence of the jury.  The trial court had just found that Defendant’s comment about being beaten by police had opened the door to admission of previously-suppressed evidence.  Defense counsel asked the court if he could talk with Defendant.  The court denied the request.  Defense counsel asserted that a Fourth DCA case permitted him to talk with his client even “in the middle of cross examination.”  The court gave counsel 10 minutes to find the case, but counsel did not find it.  When the trial resumed, defense counsel moved for a mistrial.  The motion was denied.
The Fourth DCA reversed.  “We have held that a defendant has the right to consult with his attorney during a recess even if he is on the stand.  Burgess v. State, 117 So.3d 889 (Fla. 4th DCA 2013).  Consequently, “[t]he trial court erred in prohibiting the defendant from speaking with his attorney during a sidebar the State requested, even in the middle of his testimony.” 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]
Defendant was charged with DUI manslaughter and related crimes arising from an accident that occurred in 2000.  For a 10-year period Defendant was evaluated and treated for mental issues.  Defense counsel believed Defendant was incompetent to stand trial, but the trial court found Defendant competent.  “Defense counsel steadfastly maintained that his client was not competent to proceed and advised [Defendant] that the proper way to challenge the trial court’s ruling on his competency was to enter a ‘conditional’ plea of no contest that ‘reserve[ed] his right to appeal the competency determination made by the [trial court].’  This advice was patently wrong.  To make matters worse, counsel for the State agreed that [Defendant] would have the right following the plea to appeal the court's competency determination.”
Defendant was convicted and appealed.  The conviction was affirmed without reaching the competency issue.  Following a guilty plea, the competency issue can be reviewed only if the defendant timely files a motion to withdraw the plea.  Here, Defendant failed to do that.
Defendant moved for postconviction relief, alleging ineffective assistance of counsel.  The motion was denied.  On appeal, the Fifth DCA reversed.  “Defense counsel recommended that [Defendant] enter a ‘conditional’ plea of no contest in order to appeal the trial court’s competency determination.  Ineffectiveness does not get much clearer than that.” 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]
A convicted Defendant sentenced to death for first-degree murder filed a motion for postconviction relief.  Among his allegations was the claim that the postconviction court “erred in refusing to admit trial counsel Ted Stokes’ professional disciplinary history in order to support allegations that Stokes’ performance was deficient in this case and to support the contention that penalty phase counsel was unjustified in relying on Stokes as lead guilt phase counsel.”  Discipline had been imposed for counsel’s “failure to file notices of appeal in two criminal cases, failure to maintain a law office trust account and trust account records, failure to timely file documents in a probate matter and failure to properly communicate with the client, failure to file a petition for adoption for which he was retained, and failure to properly investigate and diligently represent a defendant in a criminal case.”
The Supreme Court affirmed.  The admission of the prior disciplinary actions was a matter within the discretion of the trial court, and was not directly relevant to the lawyers’ performance in representing Defendant in this case.  “Further, such matters are not the proper subject of impeachment under section 90.608, Florida Statutes (2007).”  The trial court did not abuse its discretion in excluding the evidence of Stokes’ disciplinary history. 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]
Defendant was being held in a federal detention facility.  Lawyer represented Defendant on the federal charges.  Unknown to Lawyer, Defendant had participated in an unsolved murder that was being investigated by state law enforcement officials.  Defendant had not been charged in that murder case.  While in federal custody, Defendant asked to speak with the police.  Lawyer was present during the interview.  Defendant confessed that he had been hired to murder the victim.  Defendant was charged and convicted in state court of the murder.
Defendant appealed, contending that Lawyer “was ineffective, on the face of the record, for having allowed him to make a statement in the hopes of obtaining leniency on the federal charges without first obtaining immunity for him.” 
The Fourth DCA affirmed. The court pointed out that the Sixth Amendment right to effective assistance of counsel is “offense specific” and so applies only to an offense with which a defendant has actually been charged.  At the time of the interview with the police, Defendant had not been charged with the murder and Lawyer did not represent him regarding the murder.  (In fact, prior to the interview, Defendant would not talk to Lawyer about what he intended to say.)
The court concluded:  “Because he had not been charged with these offenses at the time of the statement for which he sought suppression, [Defendant] cannot claim ineffective assistance of counsel.  His federal attorney [Lawyer] was not representing him in connection with the charges in this case.” 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]
In response to certified questions from the First DCA, the Florida Supreme Court addressed issues relating to claims of ineffective assistance of counsel in termination of parental rights proceedings.  See J.B. v. Dept. of Children and Families, 158 So.3d 653 (Fla. 1st DCA 2014).
The Court first “expressly recognize[d] that indigent parents not only have a right to counsel, but that under our state constitution, they are afforded the right to effective assistance of counsel in TPR [termination of parental rights] proceedings.”
The Court then addressed the standard for ineffective assistance.  The Court rejected the idea that the Strickland v. Washington standard applicable in criminal cases applied; the right to effective assistance of counsel in TPR cases is not derived from the Sixth Amendment, but from the state constitution’s due process clause.  The Court stated that the standard in TPR cases includes the following elements:  “There is a strong presumption that the attorney representing a parent, as a professional subject to the standards of the legal profession, has provided reasonable, professional assistance.  Accordingly, to overcome that presumption and obtain relief from a TPR order, a parent must identify specific errors of commission or of omission made by the parent’s counsel that under the totality of the circumstances evidence a deficiency in the exercise of reasonable, professional judgment in the case.  Moreover, the parent must establish that, cumulatively, this deficient representation so prejudiced the outcome of the TPR proceeding that but for counsel’s deficient representation the parent’s rights would not have been terminated.  If the parent establishes that the result of the TPR proceeding would have been different absent the attorney’s deficient performance, the order terminating parental rights should be vacated, and the case returned to the circuit court for further proceedings.  This requires a showing of prejudice that goes beyond the Strickland requirement that confidence in the outcome is undermined.”
Finally, the Court set out a “temporary process” for bringing ineffective assistance claims, which will be used until a special committee proposed a permanent process and attendant rules to the Court.  This “Select Committee” will be appointed by the Chief Justice, with its members chosen “from the Juvenile Court Rules Committee, the Appellate Court Rules Committee, and others with relevant expertise from related areas” charged with submitting its proposed rules to the Court by November 30, 2015. 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]
Two suspects were arrested and charged after a victim was accosted by two men at gunpoint.  One codefendant allegedly made a post-arrest statement adverse to the other.  He later denied making the statement.  The two codefendants were jointly represented by retained counsel.  At a severance hearing, defense counsel brought up the dual representation issue.  The trial court noted that there was a potential conflict of interest and asked both codefendants if they wished to continue to be jointly represented by the same counsel.  They both answered that they did.
The codefendants were tried together.  Alexis (“Respondent”) was convicted.  Respondent filed motion for postconviction relief, alleging that he was provided ineffective assistance of counsel because the trial court did not conduct a sufficient inquiry regarding the joint representation, and so his waiver was invalid.  (Specifically, Respondent argued that the 3-step conflict inquiry procedure prescribed in Larzelere v. State, 676 So.2d 394 (Fla. 1996) was required, and that the trial court had completed only the first step of that procedure.)  The First DCA agreed and granted Respondent a new trial.
The State petitioned for Supreme Court review based on the Court’s conflict jurisdiction.  The Court quashed the First DCA’s decision.  In a lengthy opinion the Court discussed relevant case law and concluded that a trial court is not required to obtain a conflict of interest waiver when criminal codefendants are represented by the same lawyer but there is no actual conflict of interest between them.  Here, only a potential conflict was presented by the multiple representation under the facts of the case.
The Court explained:  “[D]efense counsel in the instant case did not object, nor did he claim he could not effectively represent both defendants.  He represented to the court that there was no impediment to joint representation.  In Cuyler [v. Sullivan, 446 U.S. 35 (1980) ], the [U.S. Supreme] Court stated that unless a court knows or should know of a conflict, the Sixth Amendment does not require a state court to initiate inquiry into the issue of a conflict of interest from multiple representation.  Multiple representation alone does not violate the Sixth Amendment, and in the absence of an objection, a court can presume there is no conflict of interest.  When the defendant does not object, only an actual conflict of interest violates a defendant’s Sixth Amendment rights; courts should not presume that a possible conflict will violate the Sixth Amendment.” 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]
Criminal Defendant wanted to discharge his counsel and represent himself at trial.  After questioning Defendant, the court ruled that Defendant was “just . . . not qualified to represent yourself.”  Defendant was convicted.  He appealed, contending that the court denied his right to self-representation.
The Fourth DCA reversed and remanded for a new trial.  “[T]he ttrial court applied the wrong legal standard, finding that Defendant was incapable of adequately representing himself, rather than lacking competence to waive his right to counsel.”
The court pointed out that the error “is structural and not subject to harmless error review.”A trial court applied the wrong legal standard in ruling that a criminal defendant could not represent himself.  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]
Convicted Criminal Defendant filed a motion for postconviction relief pursuant to Fla.R.Crim.P. 3.850 alleging that his trial counsel was ineffective for failing to object to the prosecution’s comments regarding his post-arrest silence.  Defendant’s theory of defense was that he acted in self-defense.  On a second appeal following a remand, the First DCA reversed.  “[Defendant] relied on a theory of self-defense.  His credibility was key to the jury’s determination whether he acted in self-defense.  Even trial counsel testified that his client was prejudiced because the prosecutor was allowed to ask him ‘Why not talk to the police if what you are saying is true’ and emphasize that [Defendant] did not want to talk to the police at the time of his arrest (or afterward).” 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]
The Florida Supreme Court amended the Rules of Juvenile Procedure in response to a report from the Florida Bar Juvenile Court Rules Committee.  Most of the changes implemented statutory changes that became effective July 1, 2014.
One change was the adoption of new rule 8.231, concerning provision of counsel to dependent children with special needs.  Subdivision (a) prescribes the procedure a court is to use in appointing a lawyer to represent the child.  Subdivision (b) sets out the statutory requirements for determining that a dependent child is one of special needs.  Subdivision (c) gives the lawyer for the child the following duties:  “The attorney shall provide the child the complete range of legal services, from the removal from the home or from the initial appointment through all available appellate proceedings. With permission of the court, the attorney may arrange for supplemental or separate counsel to represent the child in appellate proceedings.” 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]
 Defendant pleaded guilty to a misdemeanor.  She subsequently alleged that her counsel provided ineffective assistance of counsel.  Defendant, who was in this country illegally, had a separate lawyer representing her in an immigration matter.  Defendant’s ineffective assistance motion alleged that defense counsel had agreed to consult with the immigration lawyer before any plea, that she “assumed” that this occurred, and that she “reasonably believed” that a withhold of adjudication would not adversely affect her ongoing immigration matter.  The postconviction court denied the motion. 
The Fourth DCA affirmed.  Defendant “essentially seeks to expand the Sixth Amendment duty recognized by Padilla [v. Kentucky, 559 U.S. 356 (2010)] to include an affirmative duty for criminal defense counsel to advise an undocumented immigrant whether a plea will have a negative impact on the possibility of avoiding removal or being able to reenter.  The possibility for an adjustment in status, a matter within the exclusive discretion of federal officials, is too speculative and not a proper basis to support prejudice for a Padilla claim.  [Citation omitted.]  Padilla involved a defendant who was lawfully present in the country and not otherwise subject to removal.  The deportation consequence he faced was clear and automatic from the face of the statute.  That is not the situation here.  We decline to extend Padilla’s holding.”  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]
Lawyer represented criminal Defendant accused of murder. Shortly after the murder, Defendant visited an acquaintance and allegedly tried to convince the acquaintance to provide a false alibi for him. The state later issued an “investigative” subpoena to the acquaintance’s counsel, seeking to talk with him about conversations he had about Defendant with “somebody besides his client.” Lawyer believed that the investigation was directed at her.
Lawyer moved to disqualify the state attorney’s office or, alternatively, to exclude the acquaintance as a witness in the prosecution of Defendant. She also filed a “motion to Disclose Alleged Criminal Investigation.” On the morning of jury selection in Defendant’s case, Lawyer reminded the trial court that the motions were pending. The court denied the motions without holding an evidentiary hearing. Defendant was tried and convicted.
Defendant appealed, contending that his Sixth Amendment right to counsel had been violated. “He asserts that upon [Lawyer]’s notification and request for hearing, the trial court was required to permit an inquiry to determine whether a conflict of interest existed.”
The Fourth DCA agreed and reversed. Defendant did not waive his right to conflict-free counsel, and in any event the record established that Defendant “was not provided with the pertinent information to which he was fundamentally entitled.”
The court then stressed “the need for trial courts to take substantive action when this type of potential conflict is brought to” their attention. The court quoted the following portion of the Comment to Rule of Professional Conduct 4-1.7: “Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person, or from the lawyer’s own interests.”
In view of this language, the court roundly rejected the state’s contention that “there was no evidence of an actual conflict” because it had suspended the investigation of Lawyer at the time of Defendant’s trial. (Emphasis by court.) “At the risk of being redundant, we once again emphatically state that when a pretrial disclosure of a possible conflict of interest is raised, ‘the trial court must either conduct an inquiry to determine whether the asserted conflict of interest will impair the defendant’s [Sixth Amendment right] or appoint separate counsel.’ Lee [v. State] , 690 So.2d [664] at 667 [(Fla. 1st DCA 1997)], citing Holloway [v. Arkansas] , 435 U.S. [475] at 484 [(1980)].” 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]
In an appeal from a parental rights termination proceeding, the former parent claimed that she was provided ineffective assistance of counsel. The First DCA affirmed because the alleged ineffectiveness was not apparent on the face of the record.
The court, however, decided to “we join our sister courts in expressing concern regarding the lack of any effective procedure for raising ineffective assistance of counsel claims in termination proceedings where the alleged ineffectiveness is not apparent on the face of the record.” The court expressed the view that “a new procedural mechanism is required,” perhaps one “similar to Florida Rule of Criminal Procedure 3.800(b)(2), which permits a defendant to file a motion to correct sentencing error in the trial court at any time before the filing of the defendant’s initial brief on appeal.”
Accordingly, the court certified to the Florida Supreme Court the following questions to be of great public importance: “I. Is the criminal standard of ineffective assistance of counsel announced in Strickland v. Washington applicable to claims of ineffective assistance of counsel in proceedings involving the termination of parental rights? II. Is any procedure available following the termination of parental rights to raise claims of ineffective assistance of counsel that are not apparent on the face of the record?” 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]
Criminal Defendant filed motions seeking to represent himself. After a Faretta hearing the court denied Defendant’s request to proceed pro se “because it found that he was incompetent to represent himself.” Defendant was convicted.
The Second DCA reversed, concluding that the trial court applied the wrong standard. “The standard is whether a defendant is competent to waive his right to counsel, not whether he is competent to represent himself. Fleck v. State, 956 So.2d 548, 549 (Fla. 2d DCA 2007); see also Eggleston v. State, 812 So.2d 524, 525 (Fla. 2d DCA 2002) (‘A criminal defendant who is competent to choose self-representation may not be denied that choice, even though the decision for self-representation will most certainly result in incompetent trial counsel.’). There is no harmless error analysis available for this error. Eggleston, 812 So.2d at 525.” 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]
Convicted Criminal Defendant filed a motion for postconviction relief under Fla.R.Crim.P. 3.850, alleging that his trial counsel provided ineffective assistance by failing to call a certain witness. The postconviction court denied relief. Defendant appealed.
The First DCA affirmed. “At the post-conviction hearing, the appellant’s trial counsel testified that he had interviewed the witness before trial and had determined that she intended to offer false testimony in order to help the appellant. Trial counsel testified that he was ethically prohibited from offering false testimony to the court. See Florida Rule of Professional Conduct 4-3.3(a)(4). Trial counsel also testified that he was advised by the witness’s own attorney that the witness would not be allowed to take the stand and perjure herself.” The appellate court concluded: “Trial counsel’s decision not to call the witness was proper. The witness was effectively unavailable for trial based on trial counsel’s reasonable belief that she would present perjured testimony. See Nelson v. State, 73 So.3d 77, 88 (Fla. 2011) (stating that the unavailability of a witness will preclude a defendant from establishing deficient performance or prejudice).” 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]
In an appeal of an order denying postconviction relief, the Second DCA took the opportunity to note “appointment of appellate counsel for postconviction proceedings is not a matter of right” but rather is guided by the due process considerations addressed in Graham v. State, 372 So.2d 1363 (Fla. 1979).
The appeals court also announced that it would stop permitting appointed appellate counsel to file Anders briefs in cases in which they can find no arguable issue to brief. Instead, the court adopted “procedures comparable to those used in the First and Fourth Districts.” (Footnote omitted.)
The court explained its reasoning: “Our major concern with continuing the process of accepting Anders briefs is the implicit agreement on the part of the court to conduct an independent review of the record in search of issues that might have merit. That review is required in direct appeals of judgments and sentences, where defendants have a Sixth Amendment right to counsel, but no constitutional provision requires this court to perform the review in a postconviction case, where decisions on appointing appellate counsel derive from individualized due process concerns. As a practical matter, the review consumes valuable judicial resources while rarely revealing an issue that results in any benefit for the defendant. We conclude that there is no justification for this court to perform such a review as a matter of course in these cases.”
The court then outlined the new procedure. If counsel cannot in good faith sign and file a merits brief, counsel is to file a motion to withdraw with content demonstrating that counsel has fulfilled the obligations to the client but cannot in good faith find an arguable appellate issue. The court then will enter an order allowing the defendant 45 days in which to file a pro se brief. Only a conditional withdraw of counsel will be granted, with counsel remaining of record to “be called upon to serve if his [or her] services are needed.” If the defendant files a pro se brief, the court “will review the case on the issues presented in that brief. If the defendant fails to file a brief, the case will be dismissed.” 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]
Acting in response to proposals submitted by the Capital Postconviction Proceedings Subcommittee of the Criminal Court Steering Committee, the Florida Supreme Court enacted changes to several sets of court rules. Two noteworthy changes were made to the Florida Rules of Criminal Procedure. First, the Court added new subdivision (k) to Rule 3.112, establishing minimum qualifications for lead counsel in capital postconviction proceedings. “Specifically, the lead attorney must have been a member of any state Bar for at least five years, and must have at least three years of experience with postconviction litigation. Additionally, the lead counsel must have participated in a total of five proceedings in any of the following categories: (a) capital trials; (b) capital sentencings; (c) capital postconviction evidentiary hearings; (d) capital collateral postconviction appeals; or (e) capital federal habeas corpus proceedings. At least two of the five proceedings must have been capital postconviction evidentiary hearings or postconviction appeals, or federal habeas proceedings.” The Court disagreed with comments submitted by Capital Collateral Regional Counsel, which urged an additional requirement of experience in handling federal habeas petitions. Instead, the Court stated that the rule it adopted “strikes the appropriate balance between requiring that attorneys have relevant experience, and adopting qualifications standards so stringent that it may prove difficult to find qualified lead counsel in some circuit.” This new rule applies to lawyers appointed or retained after April 1, 2015.
The second change is the addition of new subdivision (b)(6) (“Appointment of Postconviction Counsel”) to rule 3.851 to provide that a defendant sentenced to death may not represent himself or herself in a capital postconviction case in state court. “A defendant sentenced to death does not have a right to self-representation on direct appeal under either the United States or Florida Constitutions, and we have previously held that we will not accept pro se filings in direct appeals in capital cases. . . . We have also held that defendants sentenced to death may not appear pro se in any postconviction appeals. . . . [W] now extend the prohibition against self-representation to include postconviction proceedings in the trial court.” This new rule applies to all postconviction motions filed on or after January 1, 2015. 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]
Criminal Defendant filed a postconviction motion under Fla.R.Crim.P. 3.850, alleging that his Counsel was ineffective for failing to give him an opportunity to accept a plea offer for 40 months imprisonment. Counsel told Defendant of the offer, then told him to call Counsel at Counsel’s office if Defendant wished to accept the offer. Defendant alleged that he called the next day but did not reach Counsel and that Counsel did not return the calls. Shortly before trial Defendant spoke with Counsel, who advised that the offer was no longer available. Defendant pleaded guilty and was sentenced to 10 years.
Defendant’s postconviction motion argued that Counsel’s “failure to give him an opportunity to accept the offer was equivalent to failing to convey it” and that, consequently, Defendant was entitled to relief under Malespin v. State, 873 So.2d 596 (Fla. 3d DCA 2004). The postconviction court rejected the argument and denied the motion.
The Fourth DCA reversed and remanded for an evidentiary hearing. “We agree with [Defendant] that his counsel’s conduct in allegedly telling him to call his office if he wished to accept the plea offer, but then neither taking nor returning his calls the next day, without telling him there was a deadline for accepting, may be tantamount to failing to communicate a plea offer.” 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]   
The Second reversed a criminal defendant's motion to discharge his counsel.  After denying the motion, the court told Defendant that he would have to file a Faretta (Faretta v. California, 422 U.S. 806 (1975)) motion if he wished to represent himself.  Although Defendant orally stated that he was “notifying the court that I would like to represent myself,” the court told him to file a motion.  Defendant did not file a written motion, and no Faretta hearing was conducted.   
The appellate court noted that “contrary to the implied assertion of the trial court, a written motion to proceed pro se is not required.  Oral invocations of the right to self-representation are sufficient to warrant a Faretta inquiry provided the request is unequivocal, as here.”  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]   
Defendant was found guilty of direct criminal contempt. On appeal he contended that the trial court erred “by not appointing him counsel or giving him an opportunity to seek counsel for the contempt proceeding.” The First DCA affirmed, citing its prior cases holding “that a defendant does not have a right to counsel under the Sixth Amendment or the Florida Rules of Criminal Procedure when charged with direct criminal contempt.”
The appeals court certified conflict with decisions of the Second and Fourth DCAs.  See Woods v. State, 987 So.2d 669 (Fla. 2d DCA 2007); Al-Hakim v. State, 53 So.3d 1171 (Fla. 2d DCA 2011); Hayes v. State, 592 So.2d 327 (Fla. 4th DCA 1992).  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).