ROBERT PINDER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Pinder appealed his conviction, raising ineffective assistance of retained counsel on direct appeal. The appellate court affirmed his conviction, holding that ineffective assistance claims must be raised through a petition under Florida Rule of Criminal Procedure 3.850 in the trial court, not on direct appeal, and that appellate review is available only after an adverse trial court ruling.
A defendant may not properly raise ineffective assistance of retained counsel for the first time on direct appeal. Instead, such claims must be raised through a petition in the trial court under Florida Rule of Criminal Procedure 3.850, and appellate review is available only after an adverse ruling by the trial court.
[1] Ineffectiveness of counsel is correctly first raised by a petition in the trial court under Florida Rule of Criminal Procedure 3.850.
[2] Appellate review of ineffective assistance of counsel claims can only be sought after an adverse ruling from the trial court.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Vagner does permit defendants to challenge convictions based on inadequacy or incompetency of retained counsel to the same extent as with appointed counsel.”
Establishes that retained counsel can be challenged for ineffectiveness, but does not establish the proper procedural mechanism.
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Join FLexlaw to unlock all legal intelligencePinder was convicted at trial and represented by retained counsel. On direct appeal, he claimed ineffective assistance of his retained counsel and req…
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COWART, Judge.
In his brief appellant states that he “desires to raise ineffective assistance of counsel on direct appeal” and for relief asks this court to remand this cause to the trial court for an evidentiary hearing on the ineffectiveness of his retained counsel. Appellant then proceeds to “plead the omissions or overt acts upon which the claim of ineffective assistance of counsel is based,” in an effort to comply with Knight v. State, 394 So. 2d 997 (Fla.1981). Appellant claims that Vagner v. Wainwright, 398 So. 2d 448 (Fla.1981), allows defendants to raise ineffective assistance of retained counsel on appeal.
Vagner.does permit defendants to challenge convictions based on inadequacy or incompetency of retained counsel to the same extent as with appointed counsel. However, the correct procedure is not as appellant’s counsel assumes. State v. Barber, 301 So. 2d 7 (Fla.1974), holds that the issue of inadequacy of appointed counsel cannot properly be raised for the first time on direct appeal, since appellate courts on direct appeal review only questions previously ruled upon by the trial judge. Accordingly, ineffectiveness of counsel is correctly first raised by a petition in the trial court under Florida Rule of Criminal Procedure 3.850 and appellate review can be sought only after an adverse ruling. Under that rule, defendant’s need not, and should not, appeal for the purpose of asking the appellate court to remand for an evidentiary hearing as the trial court can be directly petitioned for that relief; relief cannot be had by appeal until issues of fact have been first resolved in the trial court.
We have considered the other points presented by appellant and also find them to be without merit. Accordingly, the judgment of conviction is
AFFIRMED.
DAUKSCH, J., and DANIEL, C. WEL-BORN, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Williams v. State, 438 So. 2d 781 (Fla. 1983)…tive assistance of counsel cannot be raised for the first time on direct appeal. Gibson v. State, 351 So. 2d 948 (Fla.1977), cert. denied, 435 U.S. 1004, 98 S.Ct. 1660, 56 L.Ed.2d 93 (1978); State v. Barber, 301 So. 2d 7 (Fla.1974); Pinder v. State, 421 So. 2d 778 (Fla. 5th DCA 1982); Kidwell v. State, 394 So. 2d 526 (Fla. 3d DCA 1981); Valero v. State, 393 So. 2d 1197 (Fla. 3d DCA 1981). We find no reason to deviate now from this principle. Here, the appellant improperly attempted to raise the question of i…
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Thames v. State, 454 So. 2d 1061 (Fla. 1st DCA 1984)…of this proposition, but deem this an argument more properly made to the trial court because the asserted denial of effective assistance of counsel during trial court proceedings must first be submitted and determined by that court. Pinder v. State, 421 So. 2d 778 (Fla. 5th DCA 1982). When a defendant appeals the summary denial of a 3.850 motion alleging ineffective assistance of counsel and the motion has been denied without attachment of any portion of the record, the only issue properly before us is whethe…
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Whitaker v. State, 433 So. 2d 1352 (Fla. 3d DCA 1983)…ure. Under the principle set down in State v. Barber, 301 So. 2d 7 (Fla.1974), the question of the adequacy of representation may not be raised for the first time on direct appeal, Rauso v. State, 425 So. 2d 618 (Fla. 4th DCA 1983); Pinder v. State, 421 So. 2d 778 (Fla. 5th DCA 1982); McMillian v. State, 403 So. 2d 994 (Fla. 2d DCA 1981); Walker v. State, 399 So. 2d 374 (Fla. 3d DCA 1981), unless the facts giving rise to such a claim are apparent on the face of the record, Stewart v. State, 420 So. 2d 862 (Fl…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- State v. Barber, 301 So. 2d 7 (Fla. 1974)
- Vagner v. Louie L. Wainwright, 398 So. 2d 448 (Fla. 1981)