ARTHUR NOBLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
The first point on appeal is whether the state’s playing of a tape recorded statement in which the defendant invoked his right to remain silent constitutes fundamental error. It does not. Simpson v. State, 418 So. 2d 984 (Fla.1982); Clark v. State, 363 So. 2d 331 (Fla.1978).
The defendant/appellant also claims ineffective assistance of trial counsel. This may only be raised in a direct appeal when the facts giving rise to such claim are apparent on the face of the record or when conflict of interest or prejudice to the defendant is shown. Stewart v. State, 420 So. 2d 862 (Fla.1982); State v. Barber, 301 So. 2d 7 (Fla.1974), and Rauso v. State, 425 So. 2d 618 (Fla. 4th DCA 1983). The main allegations against counsel here, that he should not have advised the defendant to testify and that he should have objected to introduction of the state’s tape, must first be heard pursuant to a motion filed in the trial court, and within an evidentiary hearing, according to the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
AFFIRMED.
GLICKSTEIN, GUNTHER, JJ., and ROBINSON, STEVEN D., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Scottie McMULLEN v. State, 876 So. 2d 589 (Fla. 5th DCA 2004)…mpetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is obvious do appellate courts address this issue on direct appeal. Gore; White v. State, 850 So. 2d 624 (Fla. 2d DCA 2003); Noble v. State, 543 So. 2d 402 (Fla. 4th DCA 1989). We find that McMullen’s claims in this point fall into “the normal” category and thus we do not consider them on the merits. Second, McMullen contends that the trial judge departed from his role as a neutral arbiter and, instea…
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Abdel Odeh v. State, 82 So. 3d 915 (Fla. 4th DCA 2011)
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Harris v. State, 564 So. 2d 1211 (Fla. 3d DCA 1990)…ng the state to play for the jury a tape-recorded interview in which Anthony Harris invoked his right to remain silent. We reject this argument. Error committed in permitting the jury to hear this type of evidence is not fundamental, Noble v. State, 543 So. 2d 402 (Fla. 4th DCA 1989); a defendant must object and move for a mistrial to preserve the error for appeal. Simpson v. State, 418 So. 2d 984 (Fla.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983); Clark v. State, 363 So. 2d 331 (F…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- State v. Barber, 301 So. 2d 7 (Fla. 1974)
- Stewart v. State, 420 So. 2d 862 (Fla. 1982)
- Simpson v. State, 418 So. 2d 984 (Fla. 1982)
- Smith v. Louie L. Wainwright, 425 So. 2d 618 (Fla. 2d DCA 1982)