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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).

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