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

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

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

    The Second DCA certified conflict with decisions of other DCAs.  See Gunn v. State, 947 So.2d 551 (Fla. 4th DCA 2006); Harris v. State, 854 So.2d 703 (Fla. 3d DCA 2003); Harrell v. State, 721 So.2d 1185 (Fla. 5th DCA 1998).  Carbajal v. State, __ So.3d ___ (Fla. 2d DCA, No. 2D07-5894, 2/24/2010).

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

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

    The First DCA answered the rephrased question in the negative.

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

    The court also noted that "[t]his case highlights the importance of a time limit for filing postconviction motions.  The only surviving document from the 1978 proceeding is the two-page Judgment and Sentence.  Whatever other record or transcript of the proceeding that was made no longer exists.  Its unlikely that anyone involved in the case other than Appellant has any recollection of the case and, therefore, it would likely be impossible to determine with any certainty at this point whether the trial court filed the statement required by rule 3.111(b)(1) (1977) or whether Appellant was properly advised of and waived his right to counsel."  Solano v. State, __ So.3d ___ (Fla. 1st DCA, No. 1D08-5580, 2/18/2010), 2010 WL 547153.

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

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

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

    The Court continued:  "We decline to hold, as Barnes requests, that a trial court may never consider other mitigation contained in the record or appoint special mitigation counsel to assist the court, where a pro se defendant's refusal to present mitigating evidence impedes or prevents the trial court's exercise of its constitutional duty to provide individualized sentencing.  Thus, relief is denied on this claim."  Barnes v. State, __ So.3d ___, 35 Fla.L.Weekly S85 (Fla., No. SC08-63, 2/4/2010), 2010 WL 375049.

Trial court committed reversible error in criminal case by reading testimony back to jury without giving defense counsel notice or opportunity to participate.  [Added 1/17/10]

    A convicted criminal Defendant filed a petition alleging ineffective assistance of appellate counsel.  The Second DCA granted the petition and, under the circumstances, decided to reverse Defendant's conviction and remand for a new trial.

    During its deliberations the jury asked to have testimony of an alibi witness read back.  The trial court complied.  Subsequently the court also complied with another jury request for a readback of the testimony for 2 state witnesses.  "Unfortunately, there is no indication in the trial transcript that defense counsel was notified, nor is there any indication that defense counsel or the prosecutor was present at either of the readbacks.  Furthermore, the transcript does not establish that the trial court at any time during the deliberations informed counsel that it had read back the testimony."  (Footnotes omitted.)

    Under Fla.R.Crim.P. 3.410, testimony may be read back "only after notice to the prosecuting attorney and to counsel for the defendant."  There was no indication that the trial court complied with this rule.  Additionally, "the [Florida] supreme court in Bradley [v. State, 513 So.2d 112 (Fla. 1987)], in response to the State's argument that defense counsel was in fact present during the trial court's consideration of the jury's question, held:  ''Notice is not dispositive.  The failure to respond in open court is alone sufficient to find error.''  Id. (quoting Curtis v. State, 480 So.2d 1277, 1278 n.2 (Fla. 1985)).  As the supreme court has concluded, '[w]ithout this participation process, it is impossible to determine whether prejudice has occurred during one of the most sensitive stages of the trial.'  Colbert v. State, 569 So.2d 433, 435 (Fla. 1990).  A rule 3.410 violation constitutes per se reversible error.  Bradley, 513 So. 2d at 112-13."  White v. State, __ So.3d ___, 35 Fla.L.Weekly D142 (Fla. 2d DCA, No. 2D09-1495, 1/8/2010), 2010 WL 45860.

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

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

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

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

    Further, Defendant's contention that his access to standby counsel was improperly limited was rejected because it had not been preserved for appellate review.  Nevertheless, the Court discussed the issue and concluded "that the trial court did not improperly restrict the role of standby counsel here.  [Defendant] was abundantly clear when he expressed his request to represent himself during the penalty phase.  Further, when the trial court granted [Defendant]’s request to represent himself, he was advised that standby counsel would be available to him if he had any questions.  Therefore, it cannot be assumed that [Defendant] expected or even desired standby counsel to independently participate in an unsolicited manner during any portion of the penalty phase.  Finally, and perhaps most telling, when the trial court instructed that standby counsel not independently participate in an unsolicited manner, [Defendant] was informed that he could ask his standby counsel any questions that he might have.  [Defendant] neither asked standby counsel any questions nor did he object to the trial court’s censure."  McKenzie v. State, __ So.3d ___, 35 Fla.L.Weekly S7 (Fla., No. SC07-2101, 1/7/2010), 2010 WL 26526.

On direct appeal, Second DCA reverses conviction based on ineffective assistance of counsel apparent on face of record.  [Added 12/7/09]

    Criminal Defendant pleaded guilty to drug charges.  The plea capped at 18 months the time of imprisonment for the one felony charge.  At the subsequent sentencing hearing, defense counsel appeared but Defendant did not.  (Defendant later contended that her non-appearance was not willful.)  The court imposed a sentence (5 years imprisonment) that exceeded the agreed-upon cap, despite the fact that neither the plea hearing transcript nor the written plea agreement contained any indication that the court would modify the sentence if Defendant did not appear.  Defense counsel pointed out that the sentence exceeded the agreed-upon cap but did not formally object.  Defense counsel did not move to withdraw the plea.  Instead, he moved to withdraw from representing Defendant.

    Defendant appealed.  The Second DCA reversed, even though Defendant had not moved in the trial court to withdraw her plea.  "In this case, as in Taylor [v. State, 919 So.2d 669 (Fla. 2d DCA 2006)] and Smith [v. State, 988 So.2d 1258 (Fla. 5th DCA 2008)], we find ineffective assistance of counsel on the face of the record.  The trial court accepted [Defendant]'s negotiated plea, which included an eighteen-month cap on prison time.  Although the trial court apparently believed that it had postponed [Defendant]'s sentencing on the condition that the agreed-upon cap would not be honored if she failed to timely appear at sentencing, this condition was not articulated as part of the plea.  Thus, there was no agreement between the trial court and [Defendant] that the court could impose a greater-than-agreed upon sentence if she failed to appear at sentencing.  See Smith, 988 So.2d at 1261 (noting that the trial court accepted the plea without warning the defendant of the consequences of failure to appear at sentencing and without an agreement that it could impose a greater sentence if the defendant failed to appear for sentencing).  As in Smith and Taylor, the ineffectiveness of [Defendant]'s counsel is evident on the face of the record: he failed to formally object when the court imposed a harsher sentence, and he did not file a motion to withdraw the plea.  Even though the trial court stated that it would entertain a motion to modify [Defendant]'s sentence based on exigent circumstances, counsel withdrew from the case without even discussing with [Defendant] the possibility of filing such motion.  Moreover, counsel actually agreed with the court's erroneous recollection of the plea bargain.  [Defendant] was obviously prejudiced by this ineffectiveness, as she received the maximum prison sentence possible for the crime charged.  Therefore, she is entitled to relief."  (Footnote omitted.)  Lowery v. State, 22 So.3d 745 (Fla. 2d DCA 2009).

On direct appeal, Fifth DCA reverses conviction on for ineffective assistance apparent on face of record.  [Added 11/18/09]

    Finding one of those "rare cases" where trial counsel's "deficient performance is clear from the face of the record," the Fifth DCA reversed a criminal Defendant's conviction.  Defendant's sole defense at trial was self-defense.  Counsel mistakenly "repeatedly explained to the jury in his closing argument" that Defendant bore the burden of proving self-defense.  Furthermore, Counsel submitted an erroneous jury instruction on the point that was read to the jury.  The Fifth DCA found deficient performance and prejudice apparent on the face of the record.      Spicer v. State, 22 So.3d 706 (Fla. 5th DCA2009).

Second DCA cautions postconviction petitioners that allegations of "fundamental error" actually could be harmful to their claims.  [Added 11/15/09]

    A convicted criminal Defenant appealed a trial court's order denying his postconviction motion as untimely.  Despite the timing issue, Defendant alleged that his petition "should nevertheless be given full consideration because the claim alleged is a matter of 'fundamental error.'"  The Second DCA affirmed, and wrote a lengthy opinion "to dispel the common misconception among prisoners that 'fundamental error' can be reviewed in a postconviction proceeding at any time, including beyond the two-year period normally permitted for motions filed under rule 3.850."

    The court noted that the term "fundamental error" is often mentioned in postconviction relief opinions.  "Nevertheless, 'fundamental error,' as most commonly defined as an error for which relief can be given on direct appeal even if the issue was not preserved in the trial court, is not a basis to justify an extension of time for the filing of a postconviction motion.  Indeed, an error that is actually reviewable on direct appeal as 'fundamental error' cannot be raised on postconviction review except as a matter of ineffective assistance of counsel.  Thus, we write to discourage the use of this term in postconviction proceedings and to encourage defendants to allege a claim using the language of rule 3.850 or other more specific legal concepts."  The court went on to examine the case law and closed by "caution[ing] those who file postconviction motions that an allegation of 'fundamental error' is unlikely to help their cause and may actually harm it."  Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009).

Trial court committed reversible error by not offering assistance of counsel to defendant appearing pro se at restitution hearing.  [Added 10/16/09]

    Criminal Defendant pleaded no contest to grand theft.  After sentencing but before restitution was determined, defense counsel withdrew.  Defendant then filed a pro se motion to modify her sentence.  At the subsequent hearing, Defendant "appeared pro se but the trial court did not offer assistance of counsel or conduct a Faretta inquiry."  The court denied Defendant's motion to modify and ordered a substantial amount of restitution (almost $400,000).

    Defendant appealed, contending that "the trial court committed fundamental error by failing to offer assistance of counsel at the restitution hearing."  Agreeing, the First DCA reversed and remanded for a new restitution hearing.  "In the instant case, [Defendant] appeared pro se at the restitution hearing.  [Defendant] was entitled to have counsel at the restitution hearing because restitution is considered part of sentencing and thus is a 'crucial' stage in the proceedings.  There is no indication from the record that [Defendant] waived her right to counsel.  Assuming arguendo that [Defendant] had waived her right to counsel, the trial court was still obligated to offer assistance of counsel.  See Tubwell [v. State] , 886 So.2d [433] at 433 [(Fla 1st DCA 2004)].  Thus, the trial court committed fundamental error by failing to obtain a knowing, intelligent, and voluntary waiver."  White v. State, 21 So.3d 77 (Fla. 1st DCA 2009).

Florida Supreme Court amends Florida Rule of Criminal Procedure 3.111(d) concerning waiver of counsel by criminal defendants suffering from severe mental illness.  [Added 9/1/09]

    On its own motion, the Florida Supreme Court amended Florida Rule of Criminal Procedure 3.111(d), concerning waiver of counsel by criminal defendants who are suffering from mental illness.

    The change was prompted by the decision in Indiana v. Edwards, 128 S.Ct. 2379 (2008), in which the United States Supreme Court held that a state constitutionally may limit a defendant's right to self-representation "by insisting upon representation by counsel at trial on the ground that, though competent to stand trial, the defendant lacks the mental capacity to conduct his own trial defense due to severe mental illness."  In Edwards, "[t]he Supreme Court took into account, among other factors, that mental illness is not a unitary concept – it varies in degree and can vary over time – and that it 'interferes with an individual’s functioning at different times in different ways.'  [Citation omitted.]  Thus, while a defendant may be competent to stand trial – i.e., may have the ability to consult with his or her lawyer with a reasonable degree of rational understanding and have a rational as well as factual understanding of the criminal proceedings – severe mental illness could, nonetheless, interfere with the defendant’s ability to conduct his or her own defense without the assistance of counsel."  Consequently, the U.S. Supreme Court concluded in Edwards that it is constitutional for states to require representation by counsel for defendants who are competent enough to stand trial but are suffering from severe mental illness to the extent that they are not competent to conduct trial proceedings by themselves.

    The prior version of rule 3.111(d) did not permit the trial court to take into consideration the defendant's mental capacity to represent himself, and thus the Florida Supreme Court revised the rule.  Rule 3.111(d), as revised (with new language underscored), provides:  "Regardless of the defendant’s legal skills or the complexity of the case, the court shall not deny a defendant’s unequivocal request to represent himself or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel, and does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself or herself."

    The revision became effective immediately upon release of the opinion.  In re: Amendments to Florida Rule of Criminal Procedure 3.111, 17 So.3d 272 (Fla. 2009).

Florida Supreme Court rules that convicted defendant's motion to withdraw plea need not contain specific request to discharge counsel.  [Added 8/28/08]

    Resolving a conflict among Districts, the Florida Supreme addressed the question of whether a convicted defendant's motion to withdraw plea under Fla.R.Crim.P.  3.170(l) must be stricken by the trial court as a nullity if the motion does not include a clear request to discharge counsel.  The Supreme Court agreed with the Fourth DCA "that a limited exception to the rule of striking pro se pleadings as nullities exists where a defendant files a pro se motion to withdraw a plea pursuant to rule 3.170(l), which contains specific allegations that give rise to an adversarial relationship, such as misadvice, affirmative misrepresentations, or coercion that led to the entry of the plea.  In these narrow circumstances, a defendant need not incant the phrase, 'I request to discharge my counsel,' to be entitled to a limited inquiry by the trial court into the allegations.  Rather, the trial court is required in these circumstances to conduct a limited inquiry to determine whether an adversarial relationship exists such that defense counsel can no longer continue to represent his or her client at a hearing in which counsel will likely be an adverse witness."  The Court pointed out in a footnote that Rule 4-3.7, Florida Rules of Professional Conduct, generally prohibits a lawyer from testifying as an adverse witness against his or her client.

    The Court quashed the Second DCA's decision in Sheppard v. State, 988 So.2d 74 (Fla. 2d DCA 2008), and approved the Fourth DCA's decisions in Bermudez v. State, 901 So.2d 981 (Fla. 4th DCA 2005), and Peterson v. State, 881 So.2d 1129 (Fla. 4th DCA 2004).

    Although "there is no constitutional right to hybrid representation at trial," the Court noted that it "has recognized that there should be a procedure in place in the trial court that affords the defendant an opportunity to express specific complaints regarding the incompetence of counsel and allow for inquiry by the trial court into those complaints."  The Court viewed the approach taken by the Fourth DCA as reasonable and consistent with the goals of the administration of justice.

    The Court explained:  "To require the defendant to affirmatively seek the discharge of his counsel rather than requiring counsel to affirmatively seek to withdraw places a greater duty on the defendant than his lawyer to bring to the trial court's attention a clear adversarial relationship.  Unlike a general allegation of a conflict of interest with the lawyer, allegations that the lawyer misadvised the defendant, misrepresented the terms of the plea, or coerced the defendant into accepting the plea create an adversarial relationship where the lawyer cannot both represent his client and refute the allegations.  In narrow circumstances such as these, the defendant has in effect requested discharge of counsel and the pleading should not be stricken as a nullity."  Sheppard v. State, 17 So.3d 275 (Fla. 2009).

Motion signed by criminal defendant's lawyer is not valid waiver of defendant's right to jury trial.  [Added 8/28/09]

    A criminal Defendant's lawyer filed a written motion waiving Defendant's right to a jury trial.  At the ensuing bench trial, Defendant was convicted.

    Defendant appealed, contending that the trial court erred by conducting the bench trial without obtaining a proper waiver from him of his right to trial by jury.  Agreeing, the Fifth DCA reversed.  "For a waiver of the right to jury trial to be valid, a waiver form must be signed by the defendant or the defendant must orally waive that right after a proper colloquy with the trial court.  Johnson v. State, 994 So.2d 960 (Fla. 2008); Smith v. State, 9 So.3d 702, 704 (Fla. 2d DCA 2009) ('A valid waiver of a criminal defendant’s right to a jury trial requires either a written waiver signed by the defendant or the defendant’s oral waiver after a proper colloquy with the trial judge.')."  The court noted that the record "contains neither a written waiver form nor a transcript showing that [Defendant] orally waived his right to a jury trial before the trial court.  The motion signed by [Defendant]’s attorney does not constitute a proper and valid waiver by [Defendant].  See State v. Upton, 658 So.2d 86 (Fla. 1995)."  Racine v. State, 16 So.3d 955 (Fla. 5th DCA 2009).

Postconviction court should have appointed counsel after defendant claimed conflict with his lawyer, who had since left public defender's office.  [Added 8/14/09]

    A convicted criminal Defendant moved for postconviction relief under Fla.R.Crim.P. 3.850.  The motion was denied and Defendant appealed.  The Second DCA reversed for a new evidentiary hearing at which Defendant would be represented by court-appointed conflict-free counsel.

    After Defendant's trial his lawyer, an assistant public defender, left the public defender's office to work for the state attorney's office.  Defendant filed a motion to "withdraw and terminate counsel" in which he contended that his new lawyer, also an assistant public defender, was not properly prepared and was not keeping Defendant informed.  Defendant asserted that "he had a conflict of interest with the entire Public Defender's Office because [his former lawyer] had worked there and because he had filed bar complaints against other attorneys with the Public Defender's Office."  The court did not grant Defendant's request for conflict-free counsel who was not from the public defender's office.  Instead, Defendant represented himself.

    On appeal Defendant argued that "the postconviction court erred in denying his request for conflict-free counsel because his position in the postconviction motion was adverse to former assistant public defender [his former lawyer]."  The Second DCA agreed and reversed for a new evidentiary hearing.  The court noted that "[t]he Public Defender's Office has a conflict precluding representation of a defendant who files a motion for postconviction relief containing allegations of ineffective assistance of a public defender that require an evidentiary hearing.  Adams v. State, 380 So.2d 421, 422 (Fla. 1980)."  The court continued:  "The issue before the postconviction court in this case was whether the Public Defender's Office has such a conflict when the assistant public defender that is the subject of the postconviction motion is no longer with the Public Defender's Office.  [Defendant] correctly argues that Fletcher v. State, 890 So.2d 1167 (Fla. 5th DCA 2004), is squarely on point.  In Fletcher, as in this case, the petitioner requested conflict-free counsel to represent him at an evidentiary hearing on his postconviction motion alleging ineffective assistance of counsel.  Id. at 1168.  The postconviction court denied the request based on its finding that the petitioner's trial counsel was no longer with the Public Defender's Office.  The Fifth District reversed, finding that the petitioner was entitled to conflict-free counsel.  Id. at 1170.  The court explained, 'While there is no right to counsel in postconviction proceedings, once the court determined that Fletcher was entitled to counsel, it should have appointed conflict-free counsel.'  Id. (citation omitted)."  Howard v. State, 17 So.3d 774 (Fla. 2d DCA 2009).

Florida Supreme Court addresses claim that defense counsel was ineffective for failing to spend enough time preparing defendant to testify.  [Added 7/29/09]

    Criminal Defendant was convicted of murder and sentenced to death.  In his motion for postconviction relief under Fla.R.Crim.P. 3.851 Defendant contended, inter alia, that trial counsel was ineffective because counsel "interfered with his right to testify by failing to adequately prepare him for examination, which caused him to waive his right to testify in his own defense."  The postconviction trial court denied relief.  Defendant appealed.

    The Florida Supreme Court affirmed.  The Court pointed out that "[w]hile defense counsel has an obligation to inform the defendant of the right to testify, see Morris [v. State], 931 So.2d [821] at 833 [(Fla. 2006)], there is no bright-line rule concerning the minimum amount of time that is necessary to constitute adequate preparation of a defendant to testify during trial[.]"  Quoting from United States v. Teague, 953 F.2d 1525, 1533 (11th Cir. 1992), the Court stated that "the essence of the claim is that the action or inaction of the attorney deprived the defendant of the ability to choose whether or not to testify in his own behalf."  In the instant case, Defendant did not allege that trial counsel failed to inform him of his right to testify.  Rather, "[t]he attack here focuses exclusively on the quantity of time counsel expended to inform him of his right to testify and to prepare him for examination.  Thus, to prevail on a claim that ineffectiveness here interfered with his right to testify, [Defendant] must demonstrate that trial counsel's preparation for his testimony was deficient such that it deprived [Defendant] of the ability to choose whether to testify on his own behalf and that this deficiency prejudiced [Defendant]."  Defendant failed to make the necessary showing.  Beasley v. State, 18 So.3d 473 (Fla. 2009).

Florida Supreme Court rules that conflict over mitigation strategy between capital defendant's counsel was not per se ineffective assistance.  [Added 7/22/09]

    Defendant was convicted of murder and sentenced to death.  His postconviction motion under Fla.R.Crim.P. 3.851 alleging ineffective assistance of counsel was denied.  Defendant appealed.  The Florida Supreme Court affirmed.

    One of the grounds alleged by Defendant was that his trial counsel were per se ineffective under United States v. Cronic, 466 U.S. 648 (1984) because there was a conflict between them regarding the proper mitigation strategy that affected the adequacy of his representation.  The Court disagreed, stating that Defendant's "specific allegation that lead counsel‘s strategy created an absolute failure of the adversarial system does not qualify under the Cronic exception to Strickland [v. Washington, 466 U.S. 668 (1984)].  Despite [Defendant]'s earnest attempt to portray lead counsel as a one-man threat to the adversarial system, none of the cases advanced by [Defendant] support this interpretation of the per se rule because each decision is either distinguishable or inapplicable to these circumstances."  The representation had subjected the prosecution's case to "meaningful adversarial testing."

    Additionally, the Court rejected Defendant's claim that the conflict between counsel regarding mitigation strategy was per se ineffective assistance as a conflict of interest.  "Conflict of interest generally occurs when an attorney actively represents conflicting interests, not when a defense team considers conflicting strategic approaches. . . .  There is no merit to [Defendant]'s allegation that any alleged internal debate over strategy rose to the magnitude of per se ineffective assistance."  Chavez v. State, 12 So.3d 199 (Fla. 2009).

Law requiring counties to fund Regional Conflict Counsel offices held unconstitutional.  [Added 7/21/09]

    Twenty-six Florida counties filed suit seeking a declaratory judgment that Section 19, Chapter 2007-62, Laws of Florida, was unconstitutional under both Art. V, Sec. 14, and Art. VII, Sec. 18(a), of the Florida Constitution.  The law established the Office of Criminal and Civil Regional Counsel and essentially required counties, rather than the state, to pay "certain constitutionally defined costs to house the offices of both the public defender and Regional Conflict Counsel."  The trial court granted summary judgment for the counties.  The state appealed.

    The First DCA affirmed.  "We approve the trial court’s decision and hold that Section 19 of Chapter 2007-62, Laws of Florida, unconstitutionally shifts the funding responsibility for certain costs of court-appointed counsel from the state to the counties [in contravention of Art. V, Sec. 14]. We hold the act unconstitutional also because the Legislature failed to make the constitutionally required determination of an important state interest [as required by Art. VII, Sec. 18(a)]."  Lewis v. Leon County, 15 So.3d 777 (Fla. 1st DCA 2009).

Neither trial counsel's personal dislike of client nor client's filing of Bar complaint resulted in ineffective assistance.  [Added 7/15/09]

    A convicted criminal Defendant under a death sentence moved for postconviction relief pursuant Fla.R.Crim.P. 3.851.  The trial court denied the petition.  Defendant appealed.

    The Florida Supreme Court affirmed.  One of Defendant's grounds for alleged ineffective assistance of counsel related to his relationship with counsel.  Defendant contended that the trial "erred in summarily denying his claim that he was not represented by conflict-free counsel based on trial counsel's personal dislike of him and based on the fact that [Defendant] filed a Bar complaint against trial counsel.  The Supreme Court pointed out that "[b]oth aspects of [Defendant]'s claim have been addressed and decided adversely to his position."  Although the Constitution guarantees counsel to an accused, it does not guarantee a "meaningful relationship" between the two.  See Morris v. Slappy, 461 U.S. 1, 13-14 (1983). 

    Furthermore, "the filing of a Bar complaint does not per se constitute a conflict of interest.  See Connor v. State, 979 So.2d 852, 861 (Fla. 2007) (denying relief on conflict of interest claim because while defendant alleged conflict of interest based on the fact that he filed a Florida Bar grievance against his counsel, he failed to allege or demonstrate how the alleged conflict impacted counsel‘s performance at the competency hearing).  The Court went on to reject Defendant's claim that the filing of the Bar complaint adversely affected counsel's performance.  "Accordingly, [Defendant] fails to establish any correlation between his filing of a Bar complaint against trial counsel and counsel‘s decisions during the trial. Because a conflict of interest has not been demonstrated, we affirm the trial court‘s summary denial of relief on this claim."  Hutchinson v. State, 17 So.3d 696 (Fla. 2009).

On rehearing, Third DCA rules that convicted defendant did not raise cognizable ineffective assistance claim by alleging he rejected plea offer because counsel advised him he would win at trial.  [Added 7/8/09]

    Defendant was charged with armed robbery.  He was offered a plea agreement of 5 years imprisonment if he would cooperate in the prosecution of his co-defendant's case.  He turned down the plea deal and went to trial.  He was convicted and sentenced to life imprisonment.

    Defendant moved for postconviction relief, essentially alleging that trial counsel was ineffective for advising him to reject the plea offer, in view of the evidence against him. Counsel allegedly told Defendant that they would win the case if it went to trial.  The court denied the motion.  Defendant appealed.

    In an opinion issued on rehearing, the Third DCA affirmed.  (In the initial opinion, since withdrawn, the appeals court reversed and remanded for an evidentiary hearing.)  The court relied on the Florida Supreme Court's decision in Morgan v. State, 991 So.2d 835 (Fla. 2008).  "The Morgan court concluded that a claim of ineffective assistance of counsel can be based on advice from counsel to reject a plea offer.  However, the Supreme Court determined that Morgan’s claim was insufficient because the defendant did not specify the deficiency or deficiencies which made his counsel’s advice to reject the plea unreasonable under the circumstances."  In the instant case, Defendant did not identify a specific deficiency in his trial counsel's performance that made counsel's advice to accept the plea unreasonable.  "Neither the defendant’s motion nor his witnesses’ affidavits state that counsel failed to fully explain the terms of the plea or the penalties defendant faced.  There is also no suggestion that counsel advised the defendant to reject the plea without first preparing and knowing the facts and issues in the case.  On the contrary, the record is clear that defense counsel’s advice to reject the plea was based on his quite reasonable belief that the State’s case was weak, and that the best strategy was to argue misidentification and/or that the codefendant acted independently."  Garcia v. State, 21 So.3d 30 (Fla. 3d DCA 2009) (on rehearing).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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