ANTHONY MCMILLAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony McMillan appealed his conviction for robbery with a firearm and carjacking, arguing his trial counsel improperly conceded his guilt during opening and closing arguments without his recorded consent. The court affirmed, holding that no on-the-record inquiry into defendant's consent to conceding guilt of a lesser included offense is required, and such issues are properly addressed in postconviction proceedings for ineffective assistance of counsel.
No on-the-record inquiry into whether a defendant agrees with the defense strategy of conceding guilt to a lesser included charge is required. Such matters are properly addressed in postconviction proceedings on ineffectiveness of counsel claims, not through remand for an evidentiary hearing on direct appeal.
[1] A trial court's entry of a judgment of acquittal on certain counts renders moot any appellate claims regarding defense counsel's concessions of guilt on those counts.
[2] A defendant is not entitled to an evidentiary hearing on appeal regarding counsel's strategy of conceding guilt to a lesser included offense without a record inquiry into…
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Join FLexlaw to unlock all legal intelligence“there is no requirement that the trial court conduct an on-the-record inquiry as to whether a defendant agrees with the defense strategy of conceding guilt of a lesser included charge”
Establishes the core holding that on-the-record inquiry into defendant's consent to conceding lesser included offenses is not required.
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Join FLexlaw to unlock all legal intelligenceMcMillan was charged with carjacking with a firearm, robbery with a firearm, burglary of a structure, and driving while license suspended. During tria…
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WARNER, C.J.
Anthony McMillan appeals his conviction and sentence for robbery with a firearm and carjacking. He makes several claims of error and we affirm all issues, writing only to address his contention that he is entitled to an evidentiary hearing because his trial counsel conceded his guilt during opening and closing argument without any record of his consent to the trial strategy. We affirm.
Appellant was charged with carjacking with a firearm, robbery with a firearm, burglary of a structure, and driving while license suspended. Appellant claims that defense counsel improperly conceded his guilt during opening and closing arguments as to the carjacking, a charge of burglary of a structure and driving while license suspended. During closing argument counsel conceded appellant’s guilt of the lesser included offense of grand theft as to the carjacking charge. Appellant asserts that because there was no record inquiry as to whether he consented to this strategy, he is entitled to an evidentiary hearing to determine the issue of his consent.
As to the concessions in opening statement, there can be no appellate issue raised regarding the statements conceding guilt as to burglary of a structure or driving while license suspended, because the trial court entered judgments .of acquittal as to those counts. With respect to the concession of guilt as to grand theft in closing argument, we are not certain that the closing argument amounts to a concession of guilt on any charge. Even if it does, we have previously held that there is no requirement that the trial court conduct an on-the-record inquiry as to whether a defendant agrees with the defense strategy of conceding guilt of a lesser included charge. See York v. State, 731 So. 2d 802, 804 (Fla. 4th DCA 1999); Geddis v. State, 715 So. 2d 991, 992 (Fla. 4th DCA 1998). This matter is properly left to postconviction proceedings on ineffectiveness of counsel, if that be the case.
Appellant cites to Nixon v. State, 572 So. 2d 1336, 1339-40 (Fla.1990), cert. denied, 502 U.S. 854, 112 S.Ct. 164, 116 L.Ed.2d 128 (1991), as standing for the proposition that a remand by the appellate court is permissible to determine whether the defendant agreed to his counsel’s strategy of conceding guilt. That case does not so hold. While in Nixon, a death penalty case, the supreme court did remand to hold such a hearing, it noted that this was an “atypical” procedure. See id. Despite the remand for a hearing, the court found that the record was still incomplete and declined to decide the issue, reserving it instead for postconviction proceedings pursuant to rule 3.850, Florida Rules of Criminal Procedure. That is exactly what we have held to be the proper procedure. Our declining to remand for such a hearing in this case does not conflict with Nixon.
We affirm the conviction and sentence of appellant.
STEVENSON and GROSS, JJ., concur.
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McMillan v. State, 254 So. 3d 1002 (Fla. 4th DCA 2018)…felony. The trial court agreed with the State that an HVFO sentence was appropriate and imposed three concurrent terms of life as a mandatory minimum.1 This Court affirmed McMillan’s convictions and sentences on direct appeal. McMillan v. State, 763 So. 2d 1140 (Fla. 4th DCA 2000). He subsequently filed several unsuccessful postconviction motions. In one of those motions, he claimed he was entitled to be resentenced because the trial court erroneously believed it was required to impose a life sentence un…
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Hamilton v. State, 786 So. 2d 654 (Fla. 1st DCA 2001)…PER CURIAM. AFFIRMED. McMillan v. State, 763 So. 2d 1140 (Fla. 4th DCA 2000); York v. State, 731 So. 2d 802 (Fla. 4th DCA 1999); [*655] Geddis v. State, 715 So. 2d 991 (Fla. 4th DCA 1998). BARFIELD, C.J., KAHN and PADOVANO, JJ., CONCUR.…
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Shaunte Collins v. State, 795 So. 2d 1066 (Fla. 4th DCA 2001)…r included offense, an evidentiary hearing would be required. Having reviewed the portion of the closing arguments provided by appellant, it is clear that counsel was not conceding guilt of any of the lesser included offenses. See McMillan v. State, 763 So. 2d 1140, 1141 (Fla. 4th DCA 2000). Rather, counsel argued that appellant hoped that the jury would consider the lesser included offenses as appellant did not expect to be found not guilty of everything. Therefore, the trial court was correct in denying this…
Authorities Cited
- Nixon v. State, 572 So. 2d 1336 (Fla. 1990)
- Newman v. United States, 502 U.S. 854 (U.S. 1991)
- Dugan v. Ohio, 502 U.S. 854 (U.S. 1991)
- Geddis v. State, 715 So. 2d 991 (Fla. 4th DCA 1998)
- York v. State, 731 So. 2d 802 (Fla. 4th DCA 1999)