AL LEGETT BURGESS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
On appellant’s motion for clarification, we address our reasoning for affirming the point on appeal regarding appellant’s ineffective assistance of counsel claim. Generally, such claims are not reviewable on direct appeal, but are more properly raised in a motion for postconviction relief. See McKinney v. State, 579 So. 2d 80, 82 (Fla.1991). However, an exception to this rule exists where the deficient performance of counsel and the prejudice to the defendant are apparent on the face of the record. Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla.1987). Here, Burgess argues that his attorney should have moved to suppress the victim’s identification of him at a live post-information, pre-trial lineup because he did not have counsel present.1 Our review of the record, however, does not clearly show that Burgess was unrepresented by counsel at the lineup. Because the validity of Burgess’ claim is not apparent from the face of the record, we do not address it.
GUNTHER, POLEN, JJ., and DONNER, STEELE, Associate Judge, concur. . A post-information lineup without counsel is unconstitutional. United States v. Wade, 388 U.S. 218, 236-37, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
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Grant v. State, 864 So. 2d 503 (Fla. 4th DCA 2004)…. 2d at 1282. An exception to the general rule exists where both counsel’s deficient performance and the prejudice to the defendant are apparent on the face of the record. See Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla.1987); Burgess v. State, 776 So. 2d 1035 (Fla. 4th DCA 2001). We cannot conceive of any strategic or tactical reason for counsel’s decision to request the lesser offense that he did. However, we do not find that the prejudice to Grant appears on the face of the record. To obtain relief du…
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Davis v. State, 852 So. 2d 355 (Fla. 5th DCA 2003)…nsecutive sentences was not the correct solution to the problem. Unfortunately, we are unable to grant Davis the relief that he apparently deserves because an order denying a motion to modify sentence is not an appeal-able order. See Pace v. State, 776 So. 2d 1035 (Fla. 4th DCA 2001) (citing Adams v. State, 487 So. 2d 1209 (Fla. 4th DCA 1986)). Therefore, although we are constrained to dismiss this appeal, we do so without prejudice to Davis to file an appropriate motion for postconviction relief seeking an a…
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Gurtram J. Johnson v. State, 795 So. 2d 1065 (Fla. 4th DCA 2001)…e nor the trial court has adequately refuted this claim. Florida Rule of Criminal Procedure 3.800(a) does provide a vehicle for claims of erroneous denial of jail time credit. See State v. Mancino, 714 So. 2d 429, 432-33 (Fla.1998); Pace v. State, 776 So. 2d 1035 (Fla. 4th DCA 2001). Appellant has made a sufficient showing of that. Therefore, we reverse the trial court’s order of summary denial and remand for further consideration of his jail time credit demands in light of this opinion. WARNER, FARMER and…
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- United States v. Wade, 388 U.S. 218 (U.S. 1967)
- Blanco v. Louie L. Wainwright, 507 So. 2d 1377 (Fla. 1987)
- Boris McKINNEY v. State, 579 So. 2d 80 (Fla. 1991)