ineffective assistance of counsel claim in Florida

2024To prevail on an ineffective assistance of counsel claim, a defendant must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 687 (1984).

2024Under Strickland v. Washington, 466 U.S. 668, 694 (1984), an ineffective assistance of counsel claim requires that (1) counsel was deficient and (2) counsel’s deficiency prejudiced the defendant.

2022“In reviewing a trial court’s ruling after an evidentiary hearing on an ineffective assistance of counsel claim, this Court defers to the factual findings of the trial court to the extent that they are supported by competent, substantial evidence, but reviews de novo the application of the law to those facts.” Id. (quoting Mungin v. State, 932 So. 2d 986, 998 (Fla. 2006)).

2022“In reviewing a trial court’s ruling after an evidentiary hearing on an ineffective assistance of counsel claim, this Court defers to the factual findings of the trial court to the extent that they are supported by competent, substantial evidence, but reviews de novo the application of the law to those facts.” Id. (quoting Mungin v. State, 932 So. 2d 986, 998 (Fla. 2006)).

2018These two prongs of the ineffective assistance of counsel test present mixed questions of law and fact, Sochor v. State, 883 So. 2d 766, 771 (Fla. 2004) (citing Strickland, 466 U.S. at 698 )), but the ultimate conclusions on both prongs are matters of law, Peterson v. State, 221 So. 3d 571, 584 (Fla. 2017) (quoting Everett v. State, 54 So. 3d 464, 472 (Fla. 2010)).

2018These two prongs of the ineffective assistance of counsel test present mixed questions of law and fact, Sochor v. State , 883 So.2d 766 , 771 (Fla. 2004) (citing Strickland , 466 U.S. at 698 , 104 S.Ct. 2052 ) ), but the ultimate conclusions on both prongs are matters of law, Peterson v. State , 221 So.3d 571 , 584 (Fla. 2017) (quoting Everett v. State , 54 So.3d 464 , 472 (Fla. 2010) ).

2018See id. at 690-92 . “[W]hen a failure to depose is alleged as part of an ineffective assistance of counsel claim, the appellant must specifically set forth the harm from the alleged omission, identifying ‘a specific evidentiary matter to which the failure to depose witnesses would relate.’” Davis v. State, 928 So. 2d 1089, 1117 (Fla. 2005) (quoting Brown v. State, 846 So. 2d 1114, 1124 (Fla. 2003)).

2016See Brown v. State, 846 So.2d 1114, 1124 (Fla.2003) (requiring that when the failure to depose a witness is alleged as a part of an ineffective assistance of counsel claim, a defendant must articulate particularized harm that resulted on a specific evidentiary issue); see also Davis v. State, 928 So.2d 1089, 1117 (Fla.2005) (finding that Davis failed to demonstrate the requisite prejudice where he failed to articulate any testimony that the witnesses could have given if they had been deposed and which was unknown by his trial counsel prior to trial); Kennedy, 547 So.2d at 913-14 (holding that

2017“In reviewing a trial court’s ruling after an evidentiary hearing on an ineffective assistance of counsel claim, this Court defers to the factual findings of the trial court to the extent that they are supported by competent, substantial evidence, but reviews de novo the application of the law to those facts.” Id. at 998 (citing Stephens v. State, 748 So. 2d 1028, 1031-32 (Fla. 1999)).” With this standard of review in mind, we turn to Knight’s arguments of ineffective assistance of counsel. 1.

2017“In reviewing a trial court’s ruling after an evidentiary hearing on an ineffective assistance of counsel claim, this Court defers to the factual findings of the trial court to the extent that they are supported by competent, substantial evidence, but reviews de novo the application of the law to those facts.” Id. at 998 (citing Stephens v. State, 748 So.2d 1028, 1031-32 (Fla. 1999)).” With this standard of review in mind, we turn to Knight’s arguments of ineffective assistance of counsel. 1.

2007See id.

2003See Medina v. State, 573 So.2d 293, 295 (Fla. 1990) (holding that allegations of ineffective assistance cannot be used to circumvent the rule that postconviction proceedings cannot serve as a second appeal).

2023Had counsel deposed Feola, he would have learned that Feola targeted Newcomer on the date of the incident to obtain leverage in order to get Newcomer to be an informant. “[W]hen failure to depose is alleged as part of an ineffective assistance of counsel claim, the appellant must specifically set forth the harm from the alleged omission, identifying ‘a specific evidentiary matter to which the failure to depose witnesses would relate.’” Ferrell v. State, 29 So. 3d 959, 969 (Fla. 2010) (quoting Davis v. State, 928 So. 2d 1089, 1117 (Fla. 2005)). “[A]lthough defense counsel is entitled to broad d

2018See id. at 690-92 . “[W]hen a failure to depose is alleged as part of an ineffective assistance of counsel claim, the appellant must specifically set forth the harm from the alleged omission, identifying ‘a specific evidentiary matter to which the failure to depose witnesses would relate.’” Davis v. State, 928 So. 2d 1089, 1117 (Fla. 2005) (quoting Brown v. State, 846 So. 2d 1114, 1124 (Fla. 2003)).

2003For example, in Rose v. State, 617 So.2d 291, 294 (Fla.1993), where a psychologist determined the defendant had an antisocial personality disorder, but not an organic brain disorder, we denied an ineffective assistance of counsel claim based on counsel's failure to investigate further.

2001See Rose v. State, 617 So.2d 291, 296 (Fla.), cert. denied, 510 U.S. 903 , 114 S.Ct. 279 , 126 L.Ed.2d 230 (1993).

2013Cf. Barthel v. State, 882 So.2d 1054, 1055 (Fla. 2d DCA 2004) (applying this Court’s decision in Nelson v. State, 875 So.2d 579 (Fla.2004)—which established new law regarding the requirements for an ineffective assistance of counsel claim for failing to call a witness—to the appeal from the denial of a postconviction motion, because the “appeal was in the ‘pipeline’ at the time Nelson became final,” and therefore the defendant “is entitled to the benefit of the controlling law in Nelson in effect at the time of appeal”). 119 So.3d at 1211 (Pariente, J., concurring).

2012Cf. Barthel v. State, 882 So.2d 1054, 1055 (Fla. 2d DCA 2004)(applying this Court’s decision in Nelson v. State, 875 So.2d 579 (Fla.2004)—which established new law regarding the requirements for an ineffective assistance of counsel claim for failing to call a witness — to the appeal from the denial of a postconviction motion, because the “appeal was in the ‘pipeline’ at the time Nelson became final,” and therefore the defendant “is entitled to the benefit of the controlling law in Nelson in effect at the time of appeal”).

2009Id.; Cherry v. State, 659 So.2d 1069 (Fla.1995).

2006See Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995).

2016See Beazley v. State, 148 So. 3d 552, 554 (Fla. 1st DCA 2014) (“Generally, a claim of ineffective assistance of counsel may not be raised on direct appeal.”); see also Aversano v. State, 966 So. 2d 493, 494-95 (Fla. 4th DCA 2007) (“With rare exceptions, ineffective assistance of counsel claims should be raised in a motion for post-conviction relief because they are generally fact-specific.”); Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d DCA 2002) (stating that an ineffective assistance of counsel claim may be considered on direct appeal “when the ineffectiveness is obvious on the face of the a

2013In Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002), this court held that when an ineffective assistance of counsel claim is raised on direct appeal and the appellant’s conviction and sentence are affirmed without a written opinion, the law of the case does not establish that this court rejected the claim on the merits.

2017Moreover, in an appeal of the denial of a postconviction motion with an ineffective assistance of counsel claim regarding the presentation of mitigation evidence, the defendant has the burden to show “that counsel’s ineffectiveness ‘deprived the defendant of a reliable penalty phase proceeding.’” Henry v. State, 937 So.2d 563, 569 (Fla. 2006) (quoting Asay v. State, 769 So. 2d 974, 985 (Fla. 2000)).

2012In order to succeed in this ineffective assistance of counsel claim, Farr must establish that Slaughter’s ineffectiveness “deprived [him] of a reliable penalty phase proceeding.” Henry v. State, 937 So.2d 563, 569 (Fla.2006) (quoting Asay v. State, 769 So.2d 974, 985 (Fla.2000)).

2019See Ragsdale, 720 So. 2d at 207 (“A hearing is warranted on an ineffective assistance of counsel claim only where a defendant alleges specific facts, not conclusively refuted by the record, which demonstrate a deficiency in the performance that prejudiced the defendant.”).

2019See Ragsdale, 720 So. 2d at 207 (“A hearing is warranted on an ineffective assistance of counsel claim only where a defendant alleges specific facts, not conclusively rebutted by the record, which demonstrate a deficiency in the performance that prejudiced the defendant.”).

2017See Hildwin v. State, 84 So. 3d 180, 191 (Fla. 2011) (“In order to prevail on an ineffective assistance of counsel claim on this ground, [the defendant] ‘must first show that the comments were improper or objectionable and that there was no tactical reason for failing to object.’ Stephens v. State, 975 So. 2d 405, 420 (Fla. 2007).

2013First, it noted that McCoy failed to rely upon any legal authority prohibiting the use of the phrase “God given common sense.” Second, the postconviction court found that the phrase was not objectionable and, in fact, noted “in the Jacksonville community, any objection by defense counsel to the State’s mention of ‘God given common sense,’ could have adversely affected the panel’s view of the defense.” To prevail on an ineffective assistance of counsel claim for failure to object to statements by the prosecution, a defendant “must first show that the comments were improper or objectionable and

2013See Freeman, 761 So.2d at 1067 (“This issue was raised on direct appeal and cannot be relitigated under the guise of ineffective assistance of counsel.”).

2013Freeman v. State, 761 So.2d 1055, 1062 (Fla.2000).

2012Spera v. State, 971 So.2d 754, 761 (Fla.2007).

2009Pursuant to Spera v. State, 971 So.2d 754, 761 (Fla.2007), however, such claim should have been stricken and Haq afforded the opportunity to amend. "[W]hen a failure to depose is alleged as part of an ineffective assistance of counsel claim, the appellant must specifically set forth the harm from the alleged omission, *1286 identifying `a specific evidentiary matter to which the failure to depose witnesses would relate.'" Davis v. State, 928 So.2d 1089, 1117 (Fla.2005) (quoting Brown v. State, 846 So.2d 1114, 1124 (Fla.2003)), cert. denied, 549 U.S. 895 , 127 S.Ct. 206 , 166 L.Ed.2d 166 (2006)

2001In so doing, this Court reaffirmed its prior decision in Rose v. State, 675 So.2d 567 (Fla.1996), wherein this Court stated that an ineffective assistance of counsel claim is a mixed question of law and fact, subject to plenary review based on Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). [3] See Stephens, 748 So.2d at 1032 ; see also Rose, 675 So.2d at 571 .

2001In so doing, this Court reaffirmed its prior decision in Rose v. State, 675 So.2d 567 (Fla.1996), wherein this Court stated that an ineffective assistance of counsel claim is a mixed question of law and fact, subject to plenary review based on Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). [3] See Stephens, 748 So.2d at 1032 ; see also Rose, 675 So.2d at 571 .

2015The jury found Mr. Romine guilty of burglary of a dwelling with assault. 1 We may consider an ineffective assistance of counsel claim “on direct appeal only in the ‘rare’ instance where (1) the ineffectiveness is apparent on the face of the record, and (2) it would be ‘a waste of judicial resources to require the trial court to address the issue.’ ” Robards v. State, 112 So.3d 1256, 1267 (Fla.2013) (quoting Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987)).

2013To that end, an ineffective assistance of counsel claim may be treated on the merits on direct appeal only in the “rare” instance where (1) the ineffectiveness is apparent on the face of the record, and (2) it would be “a waste of judicial resources to require the trial court to address the issue.” Blanco, 507 So.2d at 1384 .

2012The Morgan court reaffirmed the holding of Cottle v. State, 733 So.2d 963 (Fla.1999), that to establish an ineffective assistance of counsel claim regarding lost plea offers, the movant must show that: (1) counsel failed to convey an offer or misadvised the movant about the penalty faced; (2) the movant would have accepted the plea offer; and (3) the plea would have resulted in a lesser sentence. 991 So.2d at 839-40 .

2011See also Cottle v. State, 733 So.2d 963, 969 (Fla.1999) (recognizing the sufficiency of an ineffective assistance of counsel claim based on counsel’s failure to convey a plea offer).

2010In making an ineffective assistance of counsel claim, Conde was required to “identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards.” Maxwell, 490 So.2d at 932 .

2007Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citing Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984)).

2024See Tyler v. State, 793 So. 2d 137, 141 (Fla. 2d DCA 2001) ("Where counsel incorrectly informs a defendant regarding the use of prior convictions as impeachment, specifically, that upon testifying the jury will hear the specific nature of the prior convictions, and the defendant shows that because of the misinformation he did not testify, he has satisfied the deficient performance prong of an ineffective assistance of counsel claim." (citing Everhart v. State, 773 So. 2d 78, 79 (Fla. 2d DCA 2000))); Everhart, 773 So. 2d at 79 (stating that erroneously telling the defendant that "if he testifie

2018See Tyler v. State, 793 So. 2d 137, 141 (Fla. 2d DCA 2001) ("Where counsel incorrectly informs a defendant regarding the use of prior convictions as impeachment, specifically, that upon testifying the jury will hear the specific nature of the prior convictions, and the defendant shows that because of the misinformation he did not testify, he has satisfied the deficient performance prong of an ineffective assistance of counsel claim." (emphasis added)); Everhart v. State, 773 So. 2d 78 , 79– 80 (Fla. 2d DCA 2000) (holding that the defendant sufficiently alleged deficient performance when he ass

2020An ineffective assistance of counsel claim on direct appeal can be addressed only “where the incompetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is obvious.” Jones v. State, 137 So. 3d 446, 449 (Fla. 4th DCA 2014) (quoting Aversano v. State, 966 So. 2d 493, 495 (Fla. 4th DCA 2007)).

2016See Beazley v. State, 148 So. 3d 552, 554 (Fla. 1st DCA 2014) (“Generally, a claim of ineffective assistance of counsel may not be raised on direct appeal.”); see also Aversano v. State, 966 So. 2d 493, 494-95 (Fla. 4th DCA 2007) (“With rare exceptions, ineffective assistance of counsel claims should be raised in a motion for post-conviction relief because they are generally fact-specific.”); Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d DCA 2002) (stating that an ineffective assistance of counsel claim may be considered on direct appeal “when the ineffectiveness is obvious on the face of the a

2018These two prongs of the ineffective assistance of counsel test present mixed questions of law and fact, Sochor v. State, 883 So. 2d 766, 771 (Fla. 2004) (citing Strickland, 466 U.S. at 698 )), but the ultimate conclusions on both prongs are matters of law, Peterson v. State, 221 So. 3d 571, 584 (Fla. 2017) (quoting Everett v. State, 54 So. 3d 464, 472 (Fla. 2010)).

2018These two prongs of the ineffective assistance of counsel test present mixed questions of law and fact, Sochor v. State , 883 So.2d 766 , 771 (Fla. 2004) (citing Strickland , 466 U.S. at 698 , 104 S.Ct. 2052 ) ), but the ultimate conclusions on both prongs are matters of law, Peterson v. State , 221 So.3d 571 , 584 (Fla. 2017) (quoting Everett v. State , 54 So.3d 464 , 472 (Fla. 2010) ).

2001See Rose v. State, 617 So.2d 291, 296 (Fla.), cert. denied, 510 U.S. 903 , 114 S.Ct. 279 , 126 L.Ed.2d 230 (1993).

1998Rose v. State, 617 So.2d 291, 296 (Fla.), cert. denied, 510 U.S. 903 , 114 S.Ct. 279 , 126 L.Ed.2d 230 (1993).

2001See Rose v. State, 617 So.2d 291, 296 (Fla.), cert. denied, 510 U.S. 903 , 114 S.Ct. 279 , 126 L.Ed.2d 230 (1993).

1998Rose v. State, 617 So.2d 291, 296 (Fla.), cert. denied, 510 U.S. 903 , 114 S.Ct. 279 , 126 L.Ed.2d 230 (1993).

2024See Tyler v. State, 793 So. 2d 137, 141 (Fla. 2d DCA 2001) ("Where counsel incorrectly informs a defendant regarding the use of prior convictions as impeachment, specifically, that upon testifying the jury will hear the specific nature of the prior convictions, and the defendant shows that because of the misinformation he did not testify, he has satisfied the deficient performance prong of an ineffective assistance of counsel claim." (citing Everhart v. State, 773 So. 2d 78, 79 (Fla. 2d DCA 2000))); Everhart, 773 So. 2d at 79 (stating that erroneously telling the defendant that "if he testifie

2024See Tyler v. State, 793 So. 2d 137, 141 (Fla. 2d DCA 2001) ("Where counsel incorrectly informs a defendant regarding the use of prior convictions as impeachment, specifically, that upon testifying the jury will hear the specific nature of the prior convictions, and the defendant shows that because of the misinformation he did not testify, he has satisfied the deficient performance prong of an ineffective assistance of counsel claim." (citing Everhart v. State, 773 So. 2d 78, 79 (Fla. 2d DCA 2000))); Everhart, 773 So. 2d at 79 (stating that erroneously telling the defendant that "if he testifie

2024Victorino v. State, 127 So. 3d 478, 486 (Fla. 2013).

2016See Victorino v. State, 127 So.3d 478, 486 (Fla.2013) (explaining that in order to prevail on an ineffective assistance of counsel claim, the defendant must prove that his trial counsel’s performance was deficient and the deficient performance was prejudicial for it deprived him of a fair trial).