STATE of Florida, Petitioner,
v.
Edwаrd Wilson BARBER and Charles Richard Barber, Respondents.
Supreme Court of Florida.
*8 Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for petitioner.
Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for respondents.
DEKLE, Justice.
Jurisdiction vests in this Court pursuant to Art. V, § 3(b)(3), Fla. Const., F.S.A., on the basis of direct conflict between the decision of the First District Court of Appeal in this cause, reported at
Respondents were convicted of two counts of breaking and entering with intent to commit grand larceny, and were sentenced to two years imprisonment. On appeal, they alleged that they had been denied effective assistance of counsel at a critical stage of the proceedings, in that the public defender had failed to preserve for review thе question of the sufficiency of the evidence to support their convictions by making appropriate motions (for directed verdict, for new trial, etc.). The particular point on which they feel the evidence was insufficient was the value of the property involved in the larceny.
The DCA recognized the rule of Chester v. State, supra, that the question of inadequate representation cannot properly be raised for the first time on a direct appeal from an adverse judgment, since it is not a matter that has been previously ruled upon by the trial court. The DCA then stated (
*9 The DCA stated that it was faced with the follоwing alternatives:
(1) sua sponte dismissal of the appeal directing the respondents to go back to the trial court level on a "Rule One" proceeding; or
(2) refusal to abide by Chester v. State, supra, applying the decision in Wainwright v. Simpson, supra, and sua sponte reversal for new trial on the ground that the public defender's acts constituted "state action" and inadequate representation of counsel; or
(3) in the interests of justice placing its own construction on F.A.R. 6.16 and granting a review of the evidence.
The DCA chose the last alternative, held that the evidence was not sufficient to sustain the conviction, and reversed and remanded for a new trial. It was a poor choice of alternatives; it was error.
As can readily be seen from the First District's opinion, its decision clearly conflicts with that of the Second District Court of Appeal in Chester v. State, supra, on the issue of whether inadequate representation of counsel can properly be raised for the first time on direct appeal. This in itself would be sufficient basis for our conflict jurisdiction, but the DCA went further and placed its own construction on F.A.R. 6.16 which directly conflicts with this Court's consistent construction of that rule in Mancini v. State, State v. Owens, and State v. Wright, supra, as the DCA clearly recognized. Upon these conflicts rests our jurisdiction.
The сonstruction placed upon F.A.R. 6.16 by the district court was erroneous. As we have previously stated in the cases noted above, unless the issue of sufficiency of the evidence to sustain a verdict in a criminal case is first presented to the trial court by way of an appropriate motion, the issue is not reviewable on direct appeal from an adverse judgment. No such appropriate motion having been made in the trial court in this cause, the question оf sufficiency of the evidence was not open to appellate review.
As to whether the issue of adequacy of representation by counsel can properly be raised for the first time on a direct appeal, we hold that it cannot properly be raised for the first time on direct appeal, since, as was recognized in Chester, "it is a matter that has not previously been ruled upon by the trial Court." An appellate court must confine itself to a rеview of only those questions which were before the trial court and upon which a ruling adverse to the appealing party was made. Haverty v. State,
Nor may any comfort be found in that portion of F.A.R. 6.16(a) which states: "The court may also in its discretion, if it deems the interests of justice to require, review any other things said or done in the cause which appear in the appeal record, including instructions to the jury." It is unnecessary to consider here the questions of whether counsel's failure to make any motion which would preserve the right to appellate review of sufficiency of the evidence would fall within the phrase "any other things said or done" and whether or not the claimed inadequacy of representation "appear[s] in the appeal record," for it is clear, in any event, that the interests of justice do not require review of counsel's claimed inadequacy in this case, since Cr.P.R. 3.850 provides a means by which this issue may properly be resolved in a correct procedural setting in the trial court where evidence may be taken, as was recognized in analogous circumstances in Wainwright v. Simpson, supra.
Respondents also contend that apрellate review of sufficiency of the evidence was proper under F.A.R. 3.7(i) which provides that, in the interests of justice, the appellate *10 court may notice fundamental error apparent in the record even if it has not been made the subject of an assignment of error; their position is that the State failed to prove a prima facie case, and that this constitutes fundamental error. To accept this contention would be to disregard entirely the holdings in Mancini v. State, State v. Owens, State v. Wright, supra, all standing for the proposition that sufficiency of the evidence must be raised by appropriate motion in order to be reviewable on direct appeal. Accordingly, we reject this contention. Wеre we to distinguish in this regard between claims that the evidence failed to establish a prima facie case, and claims that the evidence was insufficient in some other regards (as, for example, that it was speculative in nature), we would have to еmasculate the principle of the above-cited cases; we find no reason to do so. The issues here raised can be reviewed in appropriate post-conviction proceedings under Cr.P.R. 3.850.
It appearing from the record that the only points on appeal argued before the district court were sufficiency of the evidence to sustain the conviction and denial of effective assistance of counsel, and having determined that neither of these issues was properly before that court, which therefore erroneously considered them, the opinion of the district court must be quashed. It appears, however, that respondents are entitled to a reviеw upon the point they raise on adequacy of counsel in appropriate post-conviction proceedings under Cr.P.R. 3.850, which was the first alternative recognized by the DCA but which that court chose to reject.
Accordingly, our writ оf certiorari is granted, and the decision of the First District Court of Appeal, reported at
It is so ordered.
ADKINS, C.J., and ROBERTS, ERVIN and BOYD, JJ., concur.
ON REHEARING DENIED
DEKLE, Justice.
It is only in exceptional circumstances that the Court undertakes to express its views in denying a petition for rehearing. We do so here because of our concern that respondents may have misapprehended that part of our holding that now a petition under Criminal Procedure Rule 3.850 may be filed and heard by the trial court, with evidence to be presented if indicated; moreover, counsel may be assigned by the trial judge for such Rule 1 рroceeding upon a proper showing of insolvency.
Respondent Charles Richard Barber concedes that he is not entitled to Rule 1 relief which has become moot, in that he has completed his sentence and accordingly is no longer "in custody" as a predicate for relief under the express terms of CrPR 3.850. Desrosiers v. State,
A Rule 1 proceeding, with newly appointed counsel to represent him thereon, is available to Respondent Edward Wilson Barber upon a proper showing. His status on parole is sufficient to qualify for a Rule 1 review; it is no different than that of a petitioner seeking relief in habeas corpus while on probation. Carnley v. Cochran,
We do not by the views expressed herein recede from the basic requirement of State v. Weeks,
Respondents' contention that in case they should fail upon a Rule 1 to show inadequate *11 representation by counsel in their trial, nevertheless, they should be allowed to proceed, confronts our basic holding in the opinion, namely, that appellate review requires a trial motion to afford the trial judge an "opportunity of error" before he is subject to review. Mancini and Owens, supra. As we understand respondents' initial position, it is that because of this long-standing rule and due to the alleged failure of trial counsel to make essential motions that their counsel's representation was fatally deficient. We have afforded the opportunity of a Rule 1 review, with counsel, as to the one respondent with standing to assert it. We find no legal basis for any other review at this point.
We аdhere to our original opinion, as herein amplified. The petition for rehearing is
Denied.
ADKINS, C.J., and ROBERTS and BOYD, JJ., concur.
ERVIN, J., specially concurring with opinion.
ERVIN, Justice (specially concurring on rehearing denied):
I concur in the opinion of the Court on rehearing denied, believing that on a Rule One hearing the points emphasized in behalf of defendants by the District Court in its opinion (
I am hopeful that before long a modification of F.A.R. 6.16 will be made by a rule change. It appears to me that the long-followed construction given the rule in the Mancini, Owens and Wright cases that unless the question of sufficiency of the evidence is first presented to the trial court it is not reviewable on direct apрeal, operates to deny a convicted defendant the direct and complete appeal that is guaranteed by the Constitutions. Our cases' construction of the rule is overly technical and places procedure and form over substance and fundamental rights. What was said about the subject by the Second District Court of Appeal in Wright v. State (Fla.App. 1968),
It also seems anomalous to me, as it did to the District Court, that an ineffectual defense attorney whо first failed to present either a motion for a directed verdict or motion for a new trial to raise the insufficiency of the evidence should be expected to be effective enough to file a motion before the trial court suggesting ineffectiveness of defense counsel in compliance with Chester v. State (Fla.App. 1973),