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]

    Through criminal defense counsel, on August 7, 2008, Defendant received an 8-year plea offer from the State in connection with a violation of probation charge.  He asked counsel how much time he would have to serve in prison, but counsel was not sure becuase he didn't know whether the provisions of the Stop Turning Out Prisoners Act (Fla.Stat. sec. 944.275(4)(b)3) would apply.  Defendant allegedly "declined the offer based on his lack of knowledge about the amount of time he would actually have to serve in prison."  On September 4, counsel asked the State about the time served question.  The plea offer was still open, but the State was unsure about the answer.  On October 23, defense counsel "gave [Defendant] 'good news' that, because the offense was old, he would have to serve only 55 to 65% of the eight-year sentence offered in the plea deal.  [Defendant] wanted to accept the deal, but the prosecutor would not agree to it and rescinded the offer.  [Defendant] then admitted the violation."

    Defendant filed a motion for postconviction relief under Fla.R.Crim.P. 3.850 alleging that "his counsel was ineffective in failing to advise him sooner as to the amount of time he would actually serve in prison.  He alleges that he would have taken the eight-year plea offer if he had known he would have to serve only 55 to 65% of the eight-year offer."  The State contended that there was no basis for relief because there was no allegation that defense counsel gave any incorrect advice.  The trial court denied the motion, and Defendant appealed.

    The Fourth DCA affirmed.  "As this case illustrates, during negotiations, plea offers are often extended based on incomplete facts regarding the circumstances of the offense, the defendant’s prior record, the applicable laws, and other salient factors.  As a result, plea offers are subject to withdrawal at any time before formal acceptance by the court.  Counsel’s inability to immediately provide perfect advice about the wisdom of accepting a plea offer, which results in the loss of what in hindsight turns out to have been a favorable plea offer, does not result in the type of prejudice necessary to establish a violation of the Sixth Amendment right to effective counsel.  The defendant has n o constitutional right to enforcement of any plea bargain until the plea is formally accepted by the court."  Hurt v. State, __ So.3d ___ (Fla. 4th DCA, No. 4D10-4598, 1/25/2012).

Fourth DCA finds ineffective assistance on face of record in direct appeal in one case but not in another.  [Added 1/19/12]

    In two opinions issued on the same day, the Fourth DCA provided some insight into when ineffective assistance when be cognizable by an appellate court on direct appeal.

    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, __ So.3d ___ (Fla. 4th DCA, No. 4D10-1383, 1/11/2012).

    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, __ So.3d ___ (Fla. 4th DCA, No. 4D09-2436, 1/11/2012).

Second DCA en banc recedes from cases suggesting that postconviction court lacks jurisdiction to hear new Rule 3.850 motion while appeal of earlier denial is pending.  [Added 1/7/12]

    Convicted Defendant's motion for postconviction relief under Fla.R.Crim.P. 3.850 was dismissed.  Defendant appealed.  While the appeal was pending Defendant filed a new, separate postconviction claim based on allegedly newly discovered evidence.  The postconviction court dismissed the new claim for lack of jurisdiction based on prior Second DCA case law.  Defendant appealed.

    Sitting en banc, the Second DCA reversed the dismissal of the second postconviction motion, expressly receded from its prior cases suggesting that the lower court's ruling was proper, and certified conflict with similar cases from the First, Third, and Fourth DCAs.

    The appeals court pointed out that its prior cases, coupled with the 2-year time limit on the filing of postconviction motions, created the potential "for an unintended procedural bar.  If prisoners were denied jurisdiction to have new and potentially meritorious claims reviewed while a previous motion was pending on appeal, they might run the risk of being denied a remedy altogether due to the two-year time limit."

    The court also emphasized that the approach it was embracing "does not necessarily require the postconviction court to rule on every new motion filed during the pendency of an appeal from an earlier postconviction proceeding.  By accepting the filing, the postconviction court has protected the defendant from the risk of procedural default under the two-year limit.  Occasionally, after accepting the filing, the postconviction court would logically choose to defer ruling on the new motion until the appeal is resolved."  No judges dissented.  Bryant v. State, __ So.3d ___ (Fla. 2d DCA, No. 2D11-2185, 1/6/2012).

Per Florida Supreme Court, lawyer whose prepared witness “chokes” on stand has not rendered ineffective assistance of counsel.  [Added 12/13/11]

     Convicted Defendant appealed the denial of his post-conviction motion under Fla.R.Crim.P. 3.851.  The Florida Supreme Court affirmed the denial of Defendant’s claims that his trial lawyer provided ineffective assistance of counsel.  Among other things, Defendant had asserted that counsel was ineffective because a witness, Defendant’s mother, was not adequately prepared and presented.  The Court rejected this contention, stating:  “[I]n preparing [Defendant]’s mother to testify, counsel discussed with her the various issues of dysfunction within the family, especially regarding substance abuse, and relied on her to present such testimony.  On the stand, however, [Defendant]’s mother apparently became embarrassed and resisted all efforts by trial counsel to develop any of this unflattering family history, except as to [Defendant]’s father.  Counsel cannot be found deficient because a witness ‘choked’ on the stand.”  Buzia v. State, __ So.3d ___, 36 Fla.L.Weekly S719 (Fla. Nos. SC10-31, 10-1645, 12/8/2011), 2011 WL 6090069.

Conviction reversed for ineffective assistance of counsel that appeals court concluded was apparent on face of record.  [Added 12/6/11]

    Gordon was convicted of crimes including aggravated battery by great bodily harm.  On appeal he contended that the trial court erred in denying his motion for acquittal on this charge because the evidence was insufficient to sustain the conviction.  “More precisely, Gordon asserts that his trial counsel rendered ineffective assistance of counsel by failing to properly move for a judgment of acquittal based upon the complete absence of evidence to establish the element of great bodily harm, and that such a failure constitutes ineffective assistance of counsel on its face. Gordon concedes that the issue was not properly preserved below and he raises this issue for the first time on direct appeal.”  The State responded by arguing that the ineffective assistance of counsel claim should be addressed in a postconviction motion rather than on direct appeal.

    The Third DCA reversed and remanded for entry of the lesser-included charge of simple battery.  Ineffective assistance claims ordinarily are not reviewable on direct appeal, but there is an exception for situations where the facts giving rise to the claim are apparent on the face of the record.  The appellate court concluded:  “This case presents just such a circumstance, and it would serve no purpose to require Gordon to file a postconviction motion where the record necessary to decide the issue is already fully developed.”  (Footnote omitted.)  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]

    Convicted criminal Defendant filed a petition for postconviction relief alleging that trial counsel provided ineffective assistance by failing to properly prepare for trial.  Defendant, however, had insisted on his right to a speedy trial over counsel's objections.  The motion was denied.  Defendant appealed.

    The Third DCA affirmed.  "[T]rial counsel attempted to conduct a reasonable investigation in preparation for trial, but was thwarted by his own client’s adamant insistence on a speedy trial.  Trial counsel advised [Defendant] that more time was needed to investigate the case, locate potential witnesses, and prepare a proper defense for trial.  Notwithstanding counsel’s advice, [Defendant] insisted that trial counsel pursue a speedy trial and not request any continuance of the trial date.  A defendant who insists on pursuing a speedy trial against his trial counsel’s advice – and with an understanding of the nature and consequences that will follow such a decision – will not later be heard to complain that he received ineffective assistance from trial counsel who failed to adequately investigate and prepare a proper defense.  Trial counsel cannot be deemed ineffective for obeying his client’s demands regarding the investigation, preparation or presentation of a defense."      Allen v. State, ___ So.3d ___, 36 Fla.L.Weekly D2437 (Fla. 3d DCA, No. 3D11-2311, 11/9/2011), 2011 WL 5375070.

"Courts are not required to hold evidentiary hearings on objectively unreasonable postconviction claims," per 4th DCA.  [Added 11/13/11]

    Convicted Defendant petitioned for postconviction relief under Fla.R.Crim.P. 3.850, alleging that he pleaded no contest to murder because defense counsel had misadvised him that a claim of self defense was "not applicable" to his situation as a matter of law.  His motion was summarily denied.  Defendant appealed.

    The Fourth DCA affirmed the summary denial of Defendant's postconviction claim.  The plea colloquy refuted Defendant's "dubious claim that he believed counsel’s alleged expert advice that self-defense can be asserted only if the victim agrees with the defendant."  (Emphasis by court.)  An evidentiary hearing on the claim was not required because, under the circumstances, there was no objectively reasonable probability that Defendant would not have pleaded.  "Courts d o not have to accept bald allegations that the prejudice component of an ineffective assistance of counsel claim is met.  Where, under the totality of the circumstances, no objectively reasonable probability of prejudice exists, the claim may be summarily denied.  Courts are not required to hold evidentiary hearings on objectively unreasonable postconviction claims."  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]

    Convicted Defendant pleaded guilty to a drug crime.  Twenty-five years later Defendant filed a motion for postconviction relief pursuant to Fla.R.Crim.P. 3.850, alleging that neither his lawyer nor the trial judge advised him of the deportation consequences of entering the plea.  Defendant, "citing Padilla v. Kentucky, 130 S.Ct. 1473 (2010), contends that his plea was involuntary because his attorney failed to inform him about the deportation consequences of his guilty plea."  The trial court denied the motion.  Defendant appealed.

    The Fifth DCA affirmed.  Defendant's motion was untimely.  "A motion for postconviction relief based on the failure to advise a defendant regarding possible deportation consequences of a guilty plea is held to the same two-year time constraints as other postconviction motions.  State v. Green, 944 So.2d 208, 218 (Fla. 2006).  Further, this Court has held that Padilla does not apply retroactively.  See Santiago v. State, 65 So.3d 575, 576 (Fla. 5th DCA 2011); State v. Shaikh, 65 So.3d 539, 540 (Fla. 5th DCA 2011)."  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]

    The Florida Supreme Court denied a death-sentenced prisoner's motion to discharge appellate counsel and proceed pro se in an appeal from the denial of his successive motion for postconviction relief.  At the same time the Court denied the motion of Appellant's counsel to withdraw.  The Court issued an interlocutory opinion "to set forth the Court’s procedure regarding the issue of pro se representation by appellants in capital postconviction appeals."  The Court summarized its holding:  "Just as we previously held as to direct appeals in capital cases in Davis v. State, 789 So.2d 978, 979 (Fla. 2001), we hold that death-sentenced appellants may not proceed pro se in any postconviction appeals."

    The Court ruled that death-sentenced appellants have no federal or state constitutional right to pro se appeals from postconviction proceedings.  The Court further decided, on policy grounds, to "exercise our discretion and make explicit our holding that Gordon and other death-sentenced appellants may not appear pro se in any postconviction appeals."  The Court concluded:  "Based on our solemn duty to ensure that the death penalty is imposed in a fair, consistent, and reliable manner – as well as our administrative responsibility to work to minimize the delays inherent in the postconviction process – we hold that death-sentenced appellants may not appear pro se in postconviction appeals.  Accordingly, Gordon’s motion to discharge counsel and appear pro se and appellate counsel’s motion for leave to withdraw are denied."  (Footnote omitted.)  Gordon v. State, __ So.3d ___, 36 Fla.L.Weekly S583 (Fla., No. SC10-541, 10/6/2011), 2011 WL 4596660.

Summarizing the law, postconviction court did not err in denying defendant's motion to discharge counsel and appoint new counsel.  [Added 9/12/11]

    Criminal Defendant was convicted of a non-capital crime.  He filed a motion for postconviction relief under Fla.R.Crim.P. 3.850.  The trial court denied the motion, and Defendant appealed.  In affirming, the Fourth DCA summarized a number of legal principles that are relevant to this type of situation (citations are omitted):

-- "A motion for postconviction relief under Rule 3.850 is a civil proceeding challenging a conviction a n d sentence."

-- "Neither the Fifth nor the Sixth Amendment rights of a criminal defendant apply in postconviction relief proceedings."

-- "A defendant cannot claim ineffective assistance of postconviction counsel."

-- The requirements of Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), and Faretta v. California, 422 U.S. 806 (1975), which are founded on the Sixth Amendment, do not apply in postconviction relief proceedings."  The court elaborated:  "Some inquiry into the voluntary and intelligent nature of a movant’s decision to seek self-representation in postconviction proceedings is typically appropriate, and a movant should be provided a sufficient opportunity to make a record of his or her reasons for seeking discharge of counsel and/or self-representation.  Nonetheless, formal Faretta and Nelson hearings are not required."

-- "In Florida, a non-capital postconviction movant has no absolute constitutional or statutory right to appointed counsel in postconviction relief proceedings."

-- "A postconviction movant h a s no constitutional right to selfrepresentation at an evidentiary hearing.  The postconviction court has discretion as to whether to discharge appointed postconviction counsel, appoint new counsel, or to allow self-representation."

    Applying these principles to the instant case, the appeals court concluded:  "The trial court did not abuse its discretion in refusing to discharge appointed counsel and refusing to appoint another postconviction attorney for [Defendant].  [Defendant] failed to show any valid basis for discharging his appointed counsel, and appellant’s rambling and incoherent filings, a n d his unorthodox demands of postconviction counsel, demonstrate that he is substantially unable to abide by procedural rules and substantive law."  (Footnote omitted.)  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]

    Defendant filed a motion for postconviction relief under Fla.R.Crim.P. 3.850 based on allegedly newly-discovered evidence.  His motion included 3 supporting affidavits.  The court summarily denied the motion without an evidentiary hearing.  Defendant appealed.

    The Third DCA reversed and remanded for an evidentiary hearing.  "Although it is true that the affidavits are themselves 'hearsay,' the pertinent question in determining whether to grant an evidentiary hearing is not whether the affidavits would be admissible if offered at a new trial.  The question is whether the affiants’ testimony, as proffered through the affidavits attached as exhibits to the motion, would be admissible if offered at a new trial.  This determination would have to be made at an evidentiary hearing."  (Emphasis by court; citations omitted.)  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]

    In a criminal case the trial court gave a jury instruction on the charged crime and lesser included offenses, including manslaughter by act.  Trial counsel did not object to the instruction.  Defendant was found guilty.  Lawyer represented Defendant on appeal, but did not argue that the jury instruction constituted fundamental error.  The Fifth DCA had previously held that the jury instruction was proper.  Barton v. State, 507 So.2d 638 (Fla. 5th DCA 1987).  Prior to the filing of the initial brief in the appeal, however, the First DCA held that the manslaughter by act jury instruction "improperly imposed an additional element of intent to kill and was therefore fundamentally erroneous" and certified conflict with Barton.  See Montgomery v. State, 34 Fla.L.Weekly D360 (Fla. 1st DCA Feb 12, 2009), approved 39 So.3d 252 (Fla. 2010).

    Defendant filed a petition pursuant to Fla.R.App.Proc. 9.141(c) alleging that Lawyer was ineffective for failing to argue that the jury instruction was fundamental error.  The Fifth DCA agreed.  "We recognize that appellate counsel is not required to anticipate changes in the law.  . . .  Still, as we said in Granberry [v. State, 919 So.2d 699 (Fla. 5th DCA 2006)], 'there are cases that hold that appellate counsel is ineffective for failing to raise favorable cases decided by other jurisdictions during the pendency of an appeal, which could result in a reversal.'  919 So.2d at 701; [citations omitted].  . . .  In this case, before [Defendant]’s initial appellate brief was filed, the First District, in Montgomery, certified conflict with this Court’s Davis [sic] decision and the supreme court had accepted the matter for review.  [Defendant]’s appellate counsel was tasked with being aware of these matters."  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]

    Father filed a petition for writ of certiorari to challenge a shelter order placing his child in the care of the maternal grandfather.  The First DCA quashed the order because it was entered in violation of his due process rights because the trial court did not honor his right to counsel during the shelter hearing.

    "[T]he trial court should have advised the father of his right to counsel and, depending on his response, should have appointed counsel or obtained a knowing and intelligent waiver before proceeding.  Its failure to do so violated the father’s due process rights and constituted a clear departure from the essential requirements of the law amounting to a miscarriage of justice."  (Footnote omitted.)  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, __ So.3d ___, 36 Fla.L.Weekly S305 (Fla., No. SC09-1733, 6/23/2011), 2011 WL 2472990.

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).

Conviction reversed because the trial court did not hold Nelson hearing, even though defendant never moved to discharge counsel.  [Added 1/18/11]  --  Penn v. State, 51 So.3d 622 (Fla. 2d DCA 2011).

Faretta inquiry was required even though defendant had shown he might not have restraint needed to represent himself.  [Added 12/1/10]  --  Flournoy v. State, 47 So.3d 403 (Fla. 2d DCA 2010).

Florida Supreme Court amends Rules of Juvenile Procedure to require counsels' presence at juvenile detention hearings.  [Added 11/13/10]  --  In re: Amendments to Florida Rule of Juvenile Procedure 8.010, 48 So.3d 809 (Fla. 2010).

Criminal defendant's decision to assert speedy trial right does not trigger Faretta self-representation inquiry.  [Added 10/28/10]  --  Boyd v. State, 45 So.3d 557 (Fla. 4th DCA 2010).

Florida Supreme Court rules that lawyer-client communication problems did not result in ineffective assistance of counsel.  [Added 10/15/10]  --  Everett v. State, 54 So.3d 464 (Fla. 2010).

Convicted defendant granted belated appeal based on counsel's prior erroneous advice regarding whether to appeal.  [Added 10/14/10]  --  Price v. State, 45 So.3d 541 (Fla. 5th DCA 2010).

Fourth DCA calls for rule amendments to address frivolous post-conviction motions.  [Added 10/7/10]  --  Marc v. State, 46 So.3d 1045 (Fla. 4th DCA 2010).

Florida Supreme Court reaffirms that motions to disqualify judge filed pro se by represented criminal defendant are a nullity.  [Added 10/3/10]  --  Ault v. State, 53 So.3d 175 (Fla. 2010).

Defendant cannot establish prejudice where error complained about was necessarily considered by court during Anders review.  [Added 9/1/10]  --  Towbridge v. State, 45 So.3d 484 (Fla. 1st DCA 2010).

Court's failure to conduct preliminary Nelson inquiry is per se reversible error.  [Added 8/26/10]  --  Torres v. State, 42 So.3d 910 (Fla. 2d DCA 2010).

Criminal defendant validly waived right to counsel after watching pre-recorded video about constitutional rights.  [Added 8/16/10]  --  Edenfield v. State, 45 So.3d 26 (Fla. 1st DCA 2010).

Convicted defendant satisfies prejudice prong of Strickland v. Washington by showing counsel failed to move for mistrial that would have been granted.  [Added 8/2/10]  --  Middleton v. State, 41 So.3d 357 (Fla. 1st DCA 2010).

First DCA denies postconviction motion as time-barred and refers filer to Dept. of Corrections for disciplinary action.  [Added 7/21/10]  --  Knowles v. State, 41 So.3d 332 (Fla. 1st DCA 2010).  NOTE:  Other recent cases in which the appeals court referred a moving defendant to the Department of Corrections for disciplinary action include:  Pleas v. State, 41 So.3d 980 (Fla. 1st DCA 2010); and Clift v. State, 43 So.3d 778 (Fla. 1st DCA 2010).

Fourth DCA affirms denial of motion to withdraw guilty plea based on alleged misadvice of counsel as to deportation consequences.  [Added 7/16/10]  --  Flores v. State, __ So.3d ___, 35 Fla.L.Weekly D1562 (Fla. 4th DCA, No. 4D08-3866, 7/14/2010), 2010 WL 2882465.

    Accord, Castano v. State, __ So.3d ___ (Fla. 5th DCA, No. 5D10-2032, 6/17/2011).

Florida Supreme Court concludes defendant's request to pro se was "unequivocal" and reverses murder conviction.  [Added 7/6/10]  --  Pasha v. State, 39 So.3d 1259 (Fla. 2010).

Court erred in denying defendant's request to represent himself in probation revocation hearing based on apparent lack of legal skills.  [Added 6/13/10]  --  Thompson v. State, 37 So.3d 939 (Fla. 2d DCA 2010).

Court erred in denying criminal defendant's request for continuance so he could retain private counsel.  [Added 6/13/10]  --   Brown v. State, 38 So.3d 212 (Fla. 2d DCA 2010).

Florida law does not provide for court-appointed counsel, or fee payment, in parental rights termination cases where parent has voluntarily surrendered rights to child.  [Added 5/10/10]  --   Justice Administration Comm'n v. Goettel, 32 So.3d 786 (Fla. 2d DCA 2010).

Court erred in denying motion to withdraw because Office of Criminal Conflict and Civil Regional Counsel not subject to appointment for indigent defendants in postconviction case.  [Added 4/26/10]  --  Office of Criminal Conflict and Civil Regional Counsel, Second District v. Smith, 33 So.3d 105 (Fla. 2d DCA 2010).

Florida Supreme Court rules that 2-year window under Green v. State does not apply if defendant had actual notice of deportation proceeding more than 2 years before moving to withdraw plea.  [Added 4/23/10]  --  Canseco v. State, 52 So.3d 575 (Fla. 2010).

Trial counsel's failure to object to reclassification of charged crime constituted ineffective assistance; conviction reversed.  [Added 3/18/10]  --  Hernandez v. State, 30 So.3d 610 (Fla. 3d DCA 2010).

Second DCA concludes that Fla.R.Crim.P. 3.850 motion alleging trial court's lack of jurisdiction must be filed within 2 year period prescribed by rule; conflict certified.  [Added 2/24/10]  --  Carbajal v. State, 28 So.3d 187 (Fla. 2d DCA 2010).

Claim for postconviction relief to set aside 1978 uncounseled conviction was properly denied as being untimely under Fla.R.Crim.P. 3.850.  [Added 2/23/10]  --  Solano v. State, 32 So.3d 648 (Fla. 1st DCA 2010).

Florida Supreme Court rules that defendant's right to self-representation was not violated when trial court appointed special counsel to develop penalty-phase mitigation.  [Added 2/12/10]  --  Barnes v. State, 29 So.3d 1010 (Fla. 2010).

Florida Supreme Court addresses self-representation and standby counsel issues in appeal of death penalty case.  [Added 1/9/10]  --  McKenzie v. State, 29 So.3d 272 (Fla. 2010).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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