BILL GREGORY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Bill Gregory appeals his conviction for burglary with assault, aggravated battery, simple battery, armed robbery, and grand theft. The appellate court affirms his conviction, finding that his ineffective assistance of counsel claim cannot be raised on direct appeal and must instead be brought through post-conviction relief procedures.
Ineffective assistance of counsel claims cannot be raised for the first time on direct appeal unless the facts are apparent on the record or the claim involves conflict of interest or prejudice to the defendant. The facts here are not apparent on the record, so the claim cannot be granted on direct appeal but may be brought through post-conviction relief proceedings.
[1] A claim of ineffective assistance of counsel is a collateral matter that must be raised in a motion for post-conviction relief, not on direct appeal.
[2] An ineffective assistance of counsel claim may be raised on direct appeal only if the facts giving rise to the claim are apparent on the face of the record.
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Join FLexlaw to unlock all legal intelligence“a claim of ineffective assistance of counsel is a collateral matter which should be brought as a motion for post-conviction relief. Such a claim may not be raised for the first time on direct appeal”
Establishes the procedural rule that ineffective assistance claims must be brought through post-conviction relief, not direct appeal
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Join FLexlaw to unlock all legal intelligenceDuring voir dire, defense counsel questioned jurors about biases against defendants with prior felony records and specifically about the defendant's c…
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PER CURIAM.
The defendant, Bill Gregory, appeals from the final judgment of conviction and sentence. For the reasons expressed, we affirm.
The relevant facts are as follows. During voir dire, defense counsel asked the jurors whether they would “have any strong biases against past offenders, someone that has a felony on their record who may have committed a previous felony.” Defense counsel went on to question the jurors about how they felt about the fact that the defendant had a prior criminal record. During trial, the defendant requested a mistrial since his attorney had told the jury about his criminal record. The defendant also informed the court that he had told his attorney prior to the trial that he did not intend to testify at trial. The trial court denied the defendant’s pro se motion for mistrial. The jury convicted the defendant of burglary with an assault, aggravated battery, simple battery, strong armed robbery, and grand theft. The trial court sentenced the defendant. The defendant appeals.
As Chief Judge Anstead pointed out in his special concurrence in Gordon v. State, 469 So. 2d 795 (Fla. 4th DCA 1985), rev. denied, 480 So. 2d 1296 (Fla.1985), a claim of ineffective assistance of counsel is a collateral matter which should be brought as a motion for post-conviction relief. Such a claim may not be raised for the first time on direct appeal, State v. Barber, 301 So. 2d 7 (Fla.1974); Walker v. State, 399 So. 2d 374 (Fla. 3d DCA 1981), unless the facts giving rise to the claim are apparent on the face of the record, 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), or conflict of interest or prejudice to the defendant is shown, Foster v. State, 387 So. 2d 344 (Fla.1980). See also, Gordon v. State, 469 So. 2d 795 (Fla. 4th DCA 1985), rev. denied, 480 So. 2d 1296 (Fla.1985).
In the instant case, the facts giving rise to the defendant’s claim are not apparent on the record. Therefore, we cannot grant the relief requested. But, our holding is without prejudice to the defendant to assert these claims in a motion for post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Caison v. State, 695 So. 2d 872 (Fla. 3d DCA 1997)…l, however, is a collateral matter which must generally be pursued for the first time in a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. See Blanco v. Wainwright, 507 So. 2d 1377 (Fla.1987); Gregory v. State 588 So. 2d 676 (Fla. 3d DCA 1991). We have said that a claim of this nature may not be raised for the first time on direct appeal unless the facts giving rise to the claim are apparent on the face of the record, a conflict of interest is shown, or prejudice to the…
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Mingo v. State, 680 So. 2d 1079 (Fla. 3d DCA 1996)…s convictions and sentences. This affirmance is without prejudice to Min-go to raise his claims of ineffective assistance of trial counsel in a post-conviction motion under rule 3.850 of the Florida Rules of Criminal Procedure. See Gregory v. State, 588 So. 2d 676 (Fla. 3d DCA 1991). Affirmed.…
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State v. Salley, 601 So. 2d 309 (Fla. 4th DCA 1992)…would be so apparent on the face of the record as to give relief on direct appeal rather than in collateral proceedings. See Stewart v. State, 420 So. 2d 862 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366; Gregory v. State, 588 So. 2d 676 (Fla. 3d DCA 1991).…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Barber, 301 So. 2d 7 (Fla. 1974)
- Stewart v. State, 420 So. 2d 862 (Fla. 1982)
- Foster v. State, 387 So. 2d 344 (Fla. 1980)
- Stewart v. Florida, 460 U.S. 1103 (U.S. 1983)
- Gordon v. State, 469 So. 2d 795 (Fla. 4th DCA 1985)
- The Citizens of the State OF Fla. v. Fla. Pub. Serv. Comm'n, 399 So. 2d 374 (Fla. 1st DCA 1981)