ALPHONSO BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alphonso Brown was convicted of armed burglary, possession of burglary tools, grand theft of a firearm, and possession of a firearm by a convicted felon, and sentenced as a habitual felony offender. On appeal, Brown claimed ineffective assistance of counsel for failure to sever the firearm possession count and challenged the constitutionality of his habitualization sentence, both of which the court rejected.
The court declined to review the ineffective assistance of counsel claim on appeal, finding such issues must be raised in post-conviction proceedings under Florida Rule of Criminal Procedure 3.850. The court affirmed Brown's habitualization sentence, holding that because Brown qualified as a habitual felony offender under the 1988 version of the statute based on his prior convictions, he could not challenge the constitutionality of subsequent amendments.
[1] Claims of ineffective assistance of counsel, where the appellate record does not contain sufficient facts to determine prejudice, should be addressed in a motion for post…
[2] A defendant's prior felony conviction, when stipulated to by the defense and admitted into evidence without objection, does not automatically render counsel ineffective f…
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Join FLexlaw to unlock all legal intelligence“ineffective assistance of counsel is collateral matter that may not be raised for the first time on appeal, unless facts on which claim is based are evident in appellate record”
Establishes the procedural bar to raising ineffective assistance claims on direct appeal without adequate record support
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Join FLexlaw to unlock all legal intelligenceBrown was convicted of four counts: armed burglary, possession of burglary tools, grand theft of a firearm, and possession of a firearm by a convicted…
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SHIVERS, Judge.
Appellant Brown was convicted and sentenced on charges of armed burglary (Count I), possession of burglary tools (Count II), grand theft of a firearm (Count III), and possession of a firearm by a convicted felon (Count IV). Outside the presence of the jury, the state and defense had stipulated that Brown had a prior felony conviction. The state subsequently admitted into evidence, without a defense objection, a certified judgment and sentence showing the prior conviction was of the crime of resisting arrest with violence.
On appeal, Brown alleges his trial counsel was ineffective for failure to move to sever Count IV, possession of a firearm by a convicted felon, from the other counts.
Appellant asserts that, because he did not testify on his own behalf, the jury would not have known about the prior felony conviction but for counsel’s failure to act. We cannot determine, from the appellate record, whether the failure to move to sever Count IV unfairly prejudiced appellant. State v. Vazquez, 419 So. 2d 1088 (Fla.1982).
Accordingly, we decline to review this issue any further, inasmuch as the issue of ineffective assistance of counsel should be addressed in a Fla.R.Crim.P. 3.850 motion for post-conviction proceeding. See Stewart v. State, 420 So. 2d 862, 864 & n. 4 (Fla.1982), cert. den., 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983) (ineffective assistance of counsel is collateral matter that may not be raised for the first time on appeal, unless facts on which claim is based are evident in appellate record); Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla.1987); Antunovich v. State, 491 So. 2d 328, 329 (Fla. 1st DCA 1986).
Appellant was sentenced as a habitual felony offender pursuant to section 775.084, Florida Statutes (1989), on Counts II through IV. He challenges the constitutionality of his habitualization, citing Johnson v. State, 589 So. 2d 1370, 1371 (Fla. 1st DCA 1991), in which we reversed the case and remanded for resentencing on the ground that Chapter 89-280, Laws of Florida, which had amended the 1988 version of the habitual felony offender statute, violated the constitutional single-subject rule.
We find appellant’s challenge to be without merit and affirm this point on appeal. See Tims v. State, 592 So. 2d 741 (Fla. 1st DCA 1992).
In Tims, we said our narrow holding in Johnson was predicated on two factors, only one of which applied to Tims: the occurrence of his present offenses within the time period when Chapter 89-280, Laws of Florida, applied. Because Tims’ prior offenses qualified him as a habitual violent felony offender under the 1988 version of the statute, we held he could not challenge the constitutionality of the 1989 amendments. See 592 So. 2d at 742. Likewise, because appellant’s prior criminal record showed the two requisite felony convictions, he qualified as a habitual felony offender under section 775.084, Florida Statutes (Supp.1988).
See McNeil v. State, 588 So. 2d 303 (Fla. 1st DCA 1991).
WIGGINTON and BARFIELD, JJ., concur.
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Lewis v. State, 992 So. 2d 421 (Fla. 3d DCA 2008)…ounsel, and the defendant, when questioned by the trial court stated that he agreed with his counsel’s trial strategy, it is clear that a single trial of all charges does not constitute apparent ineffective assistance of counsel. See Brown v. State, 604 So. 2d 20, 21 (Fla. 1st DCA 1992) (finding that the failure of defense counsel to sever a possession of a firearm by a convicted felon charge from other charges tried, does not constitute ineffective assistance of counsel that can be determined on the face of…
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Moore v. State, 74 So. 3d 547 (Fla. 5th DCA 2011)…e, we note that Moore’s trial counsel did not seek to sever the count alleging possession of a firearm by a convicted felon from the remaining charges, and that Moore did not raise this as a ground for relief in his 3.850 motion. Cf. Brown v. State, 604 So. 2d 20 (Fla. 1st DCA 1992); Sloan v. State, 500 So. 2d 727 (Fla. 2d DCA 1987). As his first issue, Moore claims that his counsel was ineffective for failing to object when the prosecutor displayed documents related to his prior conviction to the jury, des…
Authorities Cited
- Blanco v. Louie L. Wainwright, 507 So. 2d 1377 (Fla. 1987)
- Stewart v. State, 420 So. 2d 862 (Fla. 1982)
- State v. Vazquez, 419 So. 2d 1088 (Fla. 1982)
- Stewart v. Florida, 460 U.S. 1103 (U.S. 1983)
- Johnson v. State, 589 So. 2d 1370 (Fla. 1st DCA 1991)
- McNEIL v. State, 588 So. 2d 303 (Fla. 1st DCA 1991)
- Tims v. State, 592 So. 2d 741 (Fla. 1st DCA 1992)
- Foster v. State, 491 So. 2d 328 (Fla. 1st DCA 1986)