Larry v. State
2011 Fla. App. LEXIS 6766
| Fla. Dist. Ct. App. | 2011Background
- Larry was convicted of delivery of a controlled substance within 1,000 feet of a convenience business and possession of cocaine.
- The State’s lead investigator testified the drug transaction occurred at a gas station with substantial retail space, exceeding 10,000 square feet.
- Florida statute defines “convenience business” as excluding establishments with at least 10,000 square feet of retail space, affecting the charged offense.
- Trial counsel did not raise the defense that the location was not a convenience business, despite the State’s evidence.
- The appellate court held the conviction should be reduced to the lesser offense of delivery of a controlled substance and remanded for resentencing; otherwise, the convictions stand.
- Ineffective assistance of counsel is analyzed under Strickland; direct appeal evidentiary standards for such claims are narrow but applicable where the record makes the deficiency and prejudice obvious.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the charge should be reduced to a lesser offense | Larry | Larry | Yes; conviction reduced and remanded |
| Whether trial counsel’s failure to object was deficient performance | Larry | Larry | Yes; deficient performance shown on record |
| Whether the failure to raise the defense was prejudicial | Larry | Larry | Yes; prejudice shown as conviction rests on a greater offense |
| Whether ineffective assistance can be reviewed on direct appeal | Larry | Larry | Yes; exception applies where error is obvious on the record |
Key Cases Cited
- State v. Higdon, 814 So.2d 1196 (Fla. 2d DCA 2002) (Discusses reduction to lesser-included offense when defense not raised)
- Harris v. State, 655 So.2d 1179 (Fla. 1st DCA 1995) (Support for reduction to lesser offense when appropriate)
- Corzo v. State, 806 So.2d 642 (Fla. 2d DCA 2002) (Ineffective assistance may be raised on direct appeal under strict circumstances)
- Bruno v. State, 807 So.2d 55 (Fla.2001) (Direct-appeal review of ineffective assistance limited but possible)
- Stewart v. State, 420 So.2d 862 (Fla.1982) (Conditions under which ineffective assistance claims may be raised on direct appeal)
- Blanco v. Wainwright, 507 So.2d 1377 (Fla.1987) (Ineffective assistance on direct appeal when evident on record)