The Ineffective Assistance of Counsel Claim on Direct Appeal

Meme v. State, 36 Fla. L. Weekly D2261 (Fla. 4th DCA, Oct 12, 2011): This case really revolves around a “judgment of acquittal” issue and whether or not the case should have been allowed to go to a jury (this is not why this case is cited here).  However, at the end the 4th responds to a claim of “ineffective assistance of counsel.”  This claim is rarely ever given any time on an appeal and is almost always raised via Fla. R. Crim. P. 3.850.  The reason it is typically raised on appeal is to try and skirt the requirement that an issue be preserved in the lower/trial court.  In Meme, it was due to the failure to file a motion to suppress.

The 4th in Meme cited to Henley v. State, 23 Fla. L. Weekly D2421 (Fla. 4th DCA, Oct 28, 1998) to support it’s decision not to address the “ineffective assistance” claim and stated “[t]his is not one of those claims so apparent on the face of the record that it may be addressed on direct appeal.”  This makes one think what could possibly be “so apparent” that an ineffectiveness claim could be raised on direct appeal.  This question, of course, begs for a reading of Henley.

Henley is a short opinion which gives us the answer.  Apparently, if the State concedes “ineffectiveness” as an error that occurred, then it may be considered on direct appeal (citing to Reaves v. State, 669 So.2d 352 (Fla. 4th DCA 1996).  The 4th then cites to Judge Anstead’s special concurrence in Gordon v. State, 469 So.2d 795 (Fla. 4th DCA 1985) to clarify the necessity for a showing of both concession and “gross ineffectiveness” before such a claim is considered on direct appeal.

Having the State concede to anything is rare enough.  It may be that conceding that the defense attorney was ineffective may not be such a bitter pill to swallow for them.  The majority of ineffective assistance claims go through the 3.850 route to which there are voluminous cases regarding just about every possible issue (see The Florida Criminal Cases Notebook, by Kurt Erlenbach).  The standard for the 3.850 claim is set forth in Strickland v. Washington, 80 L. Ed. 2d 674 (1984) although there is a lot of wiggle room that subsequent cases have tried to fill.

Finally, don’t call me for help in the 3.850 realm.

Eric J Dirga, PA

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