193 So. 3d 1070
Fla. Dist. Ct. App.2016Background
- Appellant Sheena Latson appealed her criminal conviction raising six ineffective-assistance-of-counsel claims and a sentencing scrivener’s-error claim.
- None of Latson’s ineffective-assistance claims were raised or preserved in the trial court.
- The sentencing error alleged that the written probation order incorrectly indicated a nolo contendere plea rather than a jury conviction; Latson never moved to correct it under Fla. R. Crim. P. 3.800(b).
- The lead opinion (per curiam) held that none of the ineffective-assistance claims are apparent on the face of the record and therefore must be raised in a postconviction motion (e.g., rule 3.850).
- The court also declined to correct the scrivener’s error because it was unpreserved and Latson failed to file a rule 3.800(b) motion.
- Judge Winokur concurred separately to criticize the increasing practice of litigating unpreserved errors on direct appeal by recasting them as ineffective assistance on the face of the record and to urge fidelity to the preservation/fundamental-error statutory scheme.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ineffective-assistance claims not apparent on record may be raised on direct appeal | Latson contends counsel was ineffective on several grounds and seeks reversal on direct appeal | State argues such claims are generally fact-specific and must be litigated in postconviction proceedings | Denied on direct appeal; claims not apparent on face of record must be raised via postconviction motion |
| Whether unpreserved errors may be reviewed as ineffective assistance instead of fundamental error | Latson argues counsel’s failures justify direct-review as ineffective assistance | State argues statute allows only preserved errors or fundamental error on direct appeal | Court follows statute: unpreserved errors must meet fundamental-error standard; not excused by recharacterizing as ineffective assistance |
| Whether the written probation order’s reference to nolo contendere is correctable on appeal | Latson requests correction of scrivener’s error in written probation order | State notes no objection or rule 3.800(b) motion was filed to preserve the error | Denied: scrivener’s error was unpreserved and not corrected on appeal |
| Whether any identified counsel errors are so obvious they may be decided on the face of the record | Latson argues some failures are obvious and prejudicial | State maintains prejudice and factual context require trial-court factfinding | Denied: none of Latson’s claims met the “obvious on face of record” threshold needed for direct-review |
Key Cases Cited
- Harrell v. State, 894 So.2d 935 (Fla. 2005) (only fundamental error is the exception to preservation rule)
- Delva v. State, 575 So.2d 643 (Fla. 1991) (definition of fundamental error)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel)
- McMann v. Richardson, 397 U.S. 759 (U.S. 1970) (right to effective counsel)
- McKinney v. State, 579 So.2d 80 (Fla. 1991) (postconviction forum is proper for IAC claims requiring evidence)
- Robards v. State, 112 So.3d 1256 (Fla. 2013) (IAC claims normally considered after rule 3.850/3.851 proceedings)
- State v. Barber, 301 So.2d 7 (Fla. 1974) (IAC claims cannot be raised first on direct appeal)
- Foster v. State, 387 So.2d 344 (Fla. 1980) (direct appeal review where judicial action created conflict)
- Stewart v. State, 420 So.2d 862 (Fla. 1982) (examined denial of continuance where facts were evident on record)
- Corzo v. State, 806 So.2d 642 (Fla. 2d DCA 2002) (IAC on direct appeal only when ineffectiveness is obvious on record)
- Monroe v. State, 191 So.3d 395 (Fla. 2016) (limited reversal for rare, face-of-record IAC—trial counsel failed to move for judgment of acquittal)
- Beazley v. State, 148 So.3d 552 (Fla. 1st DCA 2014) (generally IAC claims not suited to direct appeal)