JOSEPH TERRELL HARDMAN, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hardman appeals the summary denial of his postconviction motion for relief following his 1987 conviction for attempted first-degree murder. The court affirms the denial regarding the restitution issue but reverses and remands regarding Hardman's claim that trial counsel was ineffective for failing to properly set forth grounds in the motion for judgment of acquittal.
The court affirms the denial of postconviction relief regarding restitution as an issue that could have been raised on direct appeal and is foreclosed from 3.850 consideration. The court reverses the denial of the motion regarding the ineffective assistance claim because the circuit court failed to address Hardman's specific allegation that counsel did not properly comply with the rule requiring detailed grounds in the judgment of acquittal motion.
[1] Issues that could have been raised on direct appeal are foreclosed from consideration in a motion for postconviction relief.
[2] A claim of ineffective assistance of counsel can be based on counsel's failure to preserve an issue for appeal.
Previewing 2 of 5 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“A collateral attack based upon a claim of ineffective assistance of counsel — unlike a direct appeal — places a difficult and additional burden on the movant to prove "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."”
Establishes the different and heightened burden applicable to postconviction ineffective assistance claims versus direct appeals.
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Join FLexlaw to unlock all legal intelligenceHardman was arrested for attempted first-degree murder with a firearm and convicted by jury in December 1987, receiving seventeen years in prison and …
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PER CURIAM.
Hardman appeals the summary denial of his motion for postconviction relief. We affirm in part and reverse in part.
Hardman was arrested for attempted first degree murder with a firearm. A jury found him guilty and he was convicted in December 1987. He was sentenced to sev enteen years in prison and twenty years probation. Hardman filed a notice of appeal. Among the judicial acts to be reviewed were that the verdict was contrary to the law and the weight of the evidence and that the trial court erred by denying Hardman’s motion for judgment of acquittal. The Public Defender’s office filed an Anders brief, which stated that since defense counsel at trial made boilerplate motions for a new trial and judgment of acquittal, the weight and sufficiency of the evidence were not preserved for review. See Johnson v. State, 478 So. 2d 885 (Fla. 3d DCA 1985); Cornwell v. State, 425 So. 2d 1189 (Fla. 1st DCA 1983).
The appeal was voluntarily dismissed.
Hardman filed a 3.850 motion for post-conviction relief alleging (1) he was denied effective assistance of counsel because defense counsel did not move for a new trial and the motion for judgment of acquittal did not fully set forth grounds, and therefore Hardman was denied an effective appeal; (2) the evidence was legally insufficient to support a conviction of any crime because there was no proof of premeditation; (3) State did not present a prima facie case; and (4) the trial court lacked jurisdiction to order restitution because there was no hearing or notice of hearing.
The circuit court denied the motion on the grounds that (1) a motion for judgment of acquittal was in fact made and denied; (2) and (3) the jury requested additional instructions on premeditation; and (4) the court had not yet ordered an amount of restitution and would not do so until after a hearing. Further, allegations (2), (3) and (4) could have been raised on direct appeal and are not properly disposed of by a 3.850 motion.
We affirm the denial of postcon-viction relief as to the issue of restitution as a condition of probation. The issue could have been raised on direct appeal, and the matter is foreclosed from consideration by a 3.850 motion. See generally, McCrae v. State, 437 So. 2d 1388 (Fla.1983). We reverse the remainder of the denial of Hardman’s motion because the circuit court did not address Hardman’s specific and detailed allegation that trial counsel was ineffective for failing to fully set forth grounds upon which the motion for judgment of acquittal was based as required by Florida Rule of Criminal Procedure 3.380(b). We remand for an evidentiary hearing to determine whether counsel was ineffective.
We are mindful of the third district’s concern that allowing an ineffective assistance of counsel claim to be based on the failure to preserve an issue could substantially undermine the preservation of error rule. See Anderson v. State, 467 So. 2d 781 (Fla. 3d DCA 1985). A collateral attack based upon a claim of ineffective assistance of counsel — unlike a direct appeal — places a difficult and additional burden on the movant to prove “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); see also, Knight v. State, 394 So. 2d 997 (Fla.1981).
Thus providing for relief on this basis does not frustrate the preservation of error rule. In addition, this court is not willing or able to deny postconviction relief from ineffective counsel to avoid offending the preservation of error rule. See Strickland, 104 S.Ct. at 2063 (the sixth amendment right to effective assistance of counsel exists and is needed to protect the fundamental right to a fair trial); see also, Menendez v. State, 562 So. 2d 858 (Fla. 1st DCA 1990) (remanding for an evidentiary hearing to determine whether counsel was ineffective for failing to preserve an issue for appeal).
REVERSED and REMANDED for further proceedings.
ERVIN, SHIVERS, and WOLF, JJ., concur.
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Goswick v. State, 658 So. 2d 1215 (Fla. 1st DCA 1995)…e assistance of counsel places the difficult and additional burden on the movant to prove that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Hardman v. State, 584 So. 2d 649 (Fla. 1st DCA 1991). It is on this point that the Defendant’s motion is fatally defective. The Defendant fails to adequately illustrate any prejudice suffered as a result of counsel’s inaction. As indicated by this Court’s denial of the Defendant’s…
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Rosemond v. State, 634 So. 2d 259 (Fla. 1st DCA 1994)…ege facts which, if true, create a reasonable probability that but for counsel’s unprofessional errors, the disposition of appellant’s criminal case would have been different. See Davis v. State, 627 So. 2d 112 (Fla. 1st DCA 1993); Hardman v. State, 584 So. 2d 649 (Fla. 1st DCA 1991). Appellant’s principal complaint appears to be that counsel failed to object to the introduction of certain evidence at trial. It is clear from the face of appellant’s own motion, however, that the trial court had previously deni…
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Berry v. State, 801 So. 2d 302 (Fla. 2d DCA 2001)…ented, it is not cognizable in a postconviction proceeding. See McDaniel v. State, 683 So. 2d 597 (Fla. 2d DCA 1996) (holding that claim that special condition of probation was illegal was not cognizable pursuant to rule 3.800(a)); Hardman v. State, 584 So. 2d 649 (Fla. 1st DCA 1991) (holding that challenge to condition of probation could have been raised on direct appeal and therefore could not be raised pursuant to rule 3.850). Affirmed. FULMER, A.C.J., and WHATLEY and COVINGTON, JJ., Concur. . Appre…
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
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- McCRAE v. State, 437 So. 2d 1388 (Fla. 1983)
- Anderson v. State, 467 So. 2d 781 (Fla. 3d DCA 1985)
- Darrel Michael Abbott v. State, 478 So. 2d 885 (Fla. 2d DCA 1985)
- Ford v. Wainwright, 425 So. 2d 1189 (Fla. 1st DCA 1983)
- Cornwell v. State, 425 So. 2d 1189 (Fla. 1st DCA 1983)
- Menendez v. State, 562 So. 2d 858 (Fla. 1st DCA 1990)