ROBERT WAGNER WHITAKER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Robert Whitaker appeals his conviction for involuntary sexual battery, raising claims of ineffective assistance of counsel and the trial court's failure to instruct the jury on maximum and minimum penalties for lesser included offenses. The appellate court affirms, holding that ineffective assistance claims must be raised by post-conviction motion rather than direct appeal, and that trial courts are not required to give penalty instructions for lesser included offenses.
The court held that ineffective assistance claims cannot be raised on direct appeal except where the facts are apparent on the record or show conflict of interest or prejudice, and that trial courts are not required to give penalty instructions for lesser included offenses when the defendant is charged with a greater offense.
[1] A claim of ineffective assistance of trial counsel is generally not properly raised for the first time on direct appeal, but must be raised by motion in the trial court,…
[2] A trial court must give a jury instruction on the maximum and minimum sentences for the offense charged, upon request of either party.
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“the question of the adequacy of representation may not be raised for the first time on direct appeal”
Establishes the procedural rule that ineffective assistance claims must be raised by post-conviction motion, not direct appeal, unless facts are apparent in the record.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWhitaker was charged with involuntary sexual battery with force likely to cause serious personal harm. Following a jury trial, he was convicted of a l…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Involuntary Sexual Battery cases and more on FLexlaw
HENDRY, Judge.
Robert Whitaker appeals from his conviction and sentence following a jury trial, for involuntary sexual battery with slight force. His two main issues on appeal are his claim of ineffective assistance of trial counsel and the trial court’s denial of his request for an instruction to the jury on the maximum and minimum penalties for the lesser included offenses. We affirm.
We find that appellant’s first argument, ineffectiveness of trial counsel, is not properly before this court since appellant has raised the issue by direct appeal rather than by motion under Rule 3.850, Florida Rules of Criminal Procedure. 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 (Fla.1982), or conflict of interest or prejudice to the defendant is shown. Foster v. State, 387 So. 2d 344 (Fla.1980); Wright v. State, 423 So. 2d 633 (Fla. 5th DCA 1982); Washington v. State, 419 So. 2d 1100 (Fla. 3d DCA 1982).
After careful consideration of appellant’s arguments on appeal and a thorough reading of the record, we can find nothing which shows ineffective assistance of trial counsel. We therefore affirm, without prejudice to the appellant’s raising this issue by appropriate motion in the trial court, following the standards set out in Knight v. State, 394 So. 2d 997 (Fla.1981).
Appellant’s second point concerns the trial court’s failure to give a requested instruction on the maximum and minimum penalties for the lesser included offenses of involuntary sexual battery with force likely to cause serious personal harm, the offense with which he was charged.
In Tascano v. State, 393 So. 2d 540 (Fla.1980), the supreme court held that under Rule 3.390(a), Florida Rules of Criminal Procedure (as amended 1977), upon the request of either party, it is mandatory that trial, courts give an instruction on the maxi mum and minimum sentences which may be imposed for the offense changed. Failure to give such an instruction, after a request to do so, will be prejudicial error unless the defendant is actually convicted of a lesser included offense. Lewis v. State, 419 So. 2d 337 (Fla.1982).
Where the defendant is charged in a multi-count information, the trial court must give the instruction on maximum and minimum sentences which may be imposed for all of the offenses charged. McCampbell v. State, 421 So. 2d 1072 (Fla.1982).
But the trial court does not have to give an instruction on penalties for lesser included offenses of the greater offense charged. McGough v. State, 407 So. 2d 622 (Fla. 5th DCA 1981), rev. denied, 413 So. 2d 876 (Fla.1982), cert. denied,U.S. -, 103 S.Ct. 72, 74 L.Ed.2d 71 (1982); Lewis v. State, 399 So. 2d 473 (Fla. 4th DCA 1981), aff’d on other grounds, 419 So. 2d 337 (Fla.1982); Williams v. State, 399 So. 2d 999 (Fla. 3d DCA 1981), rev. denied, 412 So. 2d 471 (Fla.1982); James v. State, 393 So. 2d 1138 (Fla. 3d DCA), rev. denied, 402 So. 2d 610 (Fla.1981).
See also Wright v. State, 428 So. 2d 746 (Fla. 1st DCA 1983), where the court held that it is not required to give an instruction informing the jury that under the habitual offender statute, the defendant could receive a sentence greater than the maximum statutory penalty; question certified.
Therefore, the trial court did not err in denying appellant’s request for instruction on the maximum and minimum penalties which could be imposed for the lesser included offenses of involuntary sexual battery. This is particularly true where, as here, the jury used its pardon power to convict the defendant of one of the lesser included offenses. Accordingly, the judgment and sentence are affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Gordon v. State, 469 So. 2d 795 (Fla. 4th DCA 1985)…adequacy of representation may not be raised for the first time on direct appeal unless the facts giving rise to such a claim are apparent on the face of the record, or conflict of interest or prejudice to the Defendant is shown. Whitaker v. State, 433 So. 2d 1352 (Fla. 3rd D.C.A. 1983); Stewart v. State, 420 So. 2d 862 (Fla.1982). Because the facts on which this claim is based are evident on the record, this contention is cognizable on appeal. The Sixth Amendment right to counsel exists in order to ensure t…
-
Mizell v. State, 716 So. 2d 829 (Fla. 3d DCA 1998)…of the record,” Gordon v. State, 469 So. 2d 795, 797 (Fla. 4th DCA 1985), review denied, 480 So. 2d 1296 (Fla.1985); Stewart v. State, 420 So. 2d 862 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983); Whitaker v. State, 433 So. 2d 1352 (Fla. 3d DCA 1983), we simply order the amendment of the sentence after remand.2 While this resolution of the case may not satisfy some of the more rabid of the judicial Thomists among us, we think it is easily more consistent with our duty to avoi…
-
Sheena Latson v. State, 193 So. 3d 1070 (Fla. 1st DCA 2016)…he district’ courts, however, read Stewart as establishing a rule that a claim directly challenging the adequacy of counsel could be raised on direct appeal, as long as the error was “apparent on the face of the record.” See e.g., Whitaker v. State, 433 So. 2d 1352, 1353 (Fla. 3d DCA 1983); Gordon, 469 So. 2d at 795; Antunovich v. State, 491 So. 2d 328, 329 (Fla. 1st DCA 1986). I submit these cases misread Stewart. Again, the defendant in Stewart did not seek relief because counsel performed ineffectively; rat…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (19 total)
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Tascano v. State, 393 So. 2d 540 (Fla. 1980)
- State v. Barber, 301 So. 2d 7 (Fla. 1974)
- Stewart v. State, 420 So. 2d 862 (Fla. 1982)
- McCAMPBELL v. State, 421 So. 2d 1072 (Fla. 1982)
- Foster v. State, 387 So. 2d 344 (Fla. 1980)
- Washington v. State, 419 So. 2d 1100 (Fla. 3d DCA 1982)
- James v. State, 393 So. 2d 1138 (Fla. 3d DCA 1981)
- Smith v. Louie L. Wainwright, 425 So. 2d 618 (Fla. 2d DCA 1982)
- Williams v. State, 399 So. 2d 999 (Fla. 3d DCA 1981)