McCLOUGH v. State
2011 Fla. App. LEXIS 18111
| Fla. Dist. Ct. App. | 2011Background
- McClough pled to robbery with a firearm and possession of a firearm by a convicted felon under a plea agreement with a cap of 20 years on the robbery count and a 10-year minimum-mandatory term, with concurrent sentence on the possession count.
- The State agreed to cap the sentence at 20 years, and the trial court expressly acknowledged the 20-year cap at the plea hearing.
- At sentencing, the court found no mitigating factors and sentenced McClough to 20 years plus two years of community control, with a 10-year minimum-mandatory on the robbery count, and a concurrent 15-year sentence with a 3-year minimum on the possession count; the total exceeded the negotiated cap.
- McClough challenged the sentence as violating the plea-cap and argued ineffective assistance of counsel for not objecting to the sentence or moving to withdraw the plea.
- The issue was not preserved for direct review as a trial court error, so the court considered whether trial counsel’s silence constituted ineffective assistance on the face of the record.
- The appellate court affirmed the conviction and sentence on the merits, without relief, but noted McClough could file a timely Rule 3.850 motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court exceed the plea cap? | McClough | McClough | Cap exceeded; preserved issue not reviewable on direct appeal |
| Was trial counsel's failure to object or seek withdrawal of the plea ineffective on the face of the record? | McClough | McClough | Not per se ineffective; silence potentially strategic; no direct relief but 3.850 available |
Key Cases Cited
- Ross v. State, 848 So.2d 392 (Fla. 2d DCA 2003) (direct appeal preservation rule for sentencing errors)
- Corzo v. State, 806 So.2d 642 (Fla. 2d DCA 2002) (ineffective assistance rarely reviewable on direct appeal)
- Smith v. State, 998 So.2d 516 (Fla. 2008) (rare direct-appeal exception for ineffectiveness when manifest on record)
- Henson v. State, 977 So.2d 736 (Fla. 2d DCA 2008) (possible tactical explanations for counsel's silence)
- Williamson v. State, 974 So.2d 582 (Fla. 2d DCA 2008) (counsel's strategic decisions may justify inaction)
- Rollman v. State, 887 So.2d 1233 (Fla. 2004) (withdrawal of plea considerations when risk exists)
- Goins v. State, 672 So.2d 30 (Fla. 1996) (plea withdrawal and sentencing considerations)
- Hettick v. State, 977 So.2d 797 (Fla. 2d DCA 2008) (procedural guidance on post-conviction relief)