TERRY VAN FUQUAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant cannot appeal on grounds that his privately retained criminal trial counsel was incompetent or ineffective, as there is no state action involved in such claims. The court affirmed the denial of post-conviction relief under Rule 3.850, finding that appellant failed to adequately present his claim of counsel incompetence.
No. A defendant cannot complain about the ineffectiveness of privately retained counsel because there is no state action involved in the alleged denial of due process. The appellate court declined to depart from prior holdings in Garmise and Spencer v. State. The defendant must demonstrate from the trial record specific instances or examples of counsel incompetence.
[1] A criminal defendant cannot complain about the ineffectiveness of privately retained counsel, as the actions of such counsel do not constitute state action and therefore…
[2] A defendant seeking post-conviction relief based on ineffective assistance of counsel must present a record demonstrating specific instances of counsel's alleged incompet…
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Join FLexlaw to unlock all legal intelligence“no state action is involved in the alleged denial of due process or fair trial and appellant cannot complain about the ineffectiveness of his counsel whom he chose”
Establishes the core holding that private counsel incompetence claims lack the state action element required for constitutional protection
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Join FLexlaw to unlock all legal intelligenceVan Fuquay was represented at trial by privately retained counsel and appealed on grounds of counsel incompetence and ineffectiveness. He sought post-…
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DAUKSCH, Chief Judge.
Appellant has raised the issue of incompetency of privately retained counsel in a criminal matter. In effect, he says he was denied due process and a fair trial because his trial counsel, not the same person as his appellate counsel, was incompetent and ineffective. This question has been answered in various cases and various Florida district courts where it has been held that no state action is involved in the alleged denial of due process or fair trial and appellant cannot complain about the ineffectiveness of his counsel whom he chose. State v. Garmise, 382 So. 2d 769 (Fla.3d DCA 1980); Spencer v. State, 385 So. 2d 119 (Fla. 1st DCA 1980).
Appellant has not shown us reason to differ from the holdings in those cases so we decline to do so. In fact, even though we have on one occasion ordered appellant to supplement the record on appeal, with which order he less than completely complied, we have no record from the trial to determine whether counsel was incompetent. Although we are aware of the Rule 9.200(f)(2), Florida Rules of Appellate Procedure, which requires our affirmative action when an incomplete record is discerned, we are certain some limit should be reached at which we shall no longer prosecute the appeal for appellant. In order to demonstrate to the trial court and this court that appellant was denied effective assistance of counsel at trial it surely must be a starting point to show from the record at trial the particular instances or examples of the allegations of incompetence.
Based upon the above cited cases and because the record concerning this appeal from a denial of collateral relief under Rule 3.850, Florida Rules of Criminal Procedure, was not properly presented to the court below or this court, we affirm the order denying post-conviction relief. We are aware that some courts have held privately retained counsel to be so incompetent so as to turn the trial into a “farce” or “mockery” and thus cause an accused to be denied due process or effective assistance of counsel. We are also of the understanding our state Supreme Court may soon decide that issue in a case styled Vagner v. Wainwright, No. 56,201, which was referred to in Garmise as “Vargas.”
The order denying appellants petition for post conviction relief is affirmed.
AFFIRMED.
ORFINGER, J., and EVANS, VERNON W., Jr., Associate Judge, concur.
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Bentley v. State, 411 So. 2d 1361 (Fla. 5th DCA 1982)…tion the probationer should have the burden to overcome in a proceeding instituted for that purpose in the trial court. See Barlow v. State, 390 So. 2d 165 (Fla. 5th DCA 1980); Barlow v. State, 388 So. 2d 349 (Fla. 5th DCA 1980); Singleton v. State, 386 So. 2d 1314 (Fla. 5th DCA 1980); Jones v. State, 384 So. 2d 956 (Fla. 5th DCA 1980); Smith v. State, 378 So. 2d 313 (Fla. 5th DCA 1980). Any appeal attacking the validity of a specific condition of probation should be from an adverse ruling in the trial court.…
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Walcott v. State, 460 So. 2d 915 (Fla. 5th DCA 1984)…by § 775.084(3), Fla.Stat.), citing Smith and Engel and Clark v. State, 363 So. 2d 331 (Fla.1978). Clark does not relate to a sentencing error but to an improper comment on the defendant’s exercise of his right to remain silent. Singleton v. State, 386 So. 2d 1314 (Fla. 5th DCA 1980), applied the COR to a sentencing error (imposition of an enhanced habitual offender sentence without prerequisite findings required by § 775.084, Fla.Stat.), citing Smith, En-gel, and Noble. Barlow v. State, 388 So. 2d 349 (Fla.…
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Authorities Cited
- State v. Garmise, 382 So. 2d 769 (Fla. 3d DCA 1980)
- Harvin v. State, 385 So. 2d 119 (Fla. 3d DCA 1980)