DARYL DANIELS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Daryl Daniels appealed the summary denial of the third ground of his postconviction motion for relief, claiming his trial counsel was ineffective for failing to object to tape-recorded conversations on hearsay grounds and for not raising the issue of the confidential informant's lack of consent to the taping. The Fourth District reversed the summary denial and remanded for an evidentiary hearing, rejecting the State's attempt to argue the issue was both procedurally barred and preserved on direct appeal.
The court reversed the summary denial of Daniels' third ground for postconviction relief, holding that the failure to preserve a potentially reversible error for appeal can constitute ineffective assistance of counsel sufficient to support a Rule 3.850 motion. The State cannot inconsistently argue that an issue was both unpreserved on direct appeal and procedurally barred in postconviction proceedings.
[1] A state cannot argue that an issue was not preserved for direct appeal and then argue in postconviction proceedings that the same issue is procedurally barred because it…
[2] A per curiam affirmance of a conviction on direct appeal does not definitively establish whether a specific issue was preserved for appeal.
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Join FLexlaw to unlock all legal intelligence“The state cannot have it both ways.”
Establishes that the State cannot argue an issue was both unpreserved on direct appeal and procedurally barred on postconviction review
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Join FLexlaw to unlock all legal intelligenceDaniels was convicted of trafficking in heroin. At trial, tape-recorded telephone conversations between Daniels and a deceased confidential informant …
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PER CURIAM.
Following a hearing on one ground of his motion for postconviction relief, which is not at issue in the instant appeal, Appellant appeals the summary denial of the third ground of his motion, and also asserts that the trial court’s bias in sentencing requires assignment of the case to a different judge on remand.
We reject without further discussion Appellant’s claim of bias, but reverse the summary denial of his third ground for relief and remand for further proceedings thereon. It appears that at Appellant’s trial for trafficking in heroin, evidence of his statements made in tape-recorded telephone conversations between Appellant and the confidential informant, who was deceased by the time of trial, contradicted his claim of entrapment and lack of predisposition. While defense counsel objected to the introduction of the taped conversations based on hearsay, the state asserted, in its brief in the direct appeal from Appellant’s conviction, that defense counsel had failed to raise during trial the argument that the conversations were inadmissible without proof of the informant’s consent to the taping,1 and thus that specific issue was not preserved for appeal. Now that Appellant argues counsel was ineffective for failing to raise the lack of consent at trial, the state argues that the issue was raised and rejected on direct appeal, and therefore is procedurally barred in the postcon-viction proceeding.
The state cannot have it both ways. This court’s per curiam affirmance of Appellant’s conviction and sentence on direct appeal does not establish whether the specific issue was or was not preserved for appeal, and neither the trial court’s order nor the state’s response on which it was based attached any portions of the record which did. The failure to preserve a potentially reversible error for appeal has been found to constitute ineffective assistance of counsel, sufficient to support a rule 3.850 motion. See Jackson v. State, 711 So. 2d 1371, 1372 (Fla. 4th DCA 1998) (rejecting state’s arguments that postcon-viction ground concerning counsel’s failure to object to prosecutor’s comments concerning defendant’s post-arrest silence was procedurally barred because raised as error in direct appeal, where it was clear any such error was not preserved for appeal by counsel’s failure to object); Davis v. State, 648 So. 2d 1249, 1250 (Fla. 4th DCA 1995).
Accordingly, we reverse that portion of the trial court’s order that summarily denied Appellant’s third ground for relief and remand for the trial court to hold an evidentiary hearing or to attach portions of the record that conclusively refute that ground.
Affirmed in part, reversed in part, and remanded for further proceedings.
POLEN, C.J., WARNER and'TAYLOR, JJ., concur. . See Payne v. State, 562 So. 2d 372 (Fla. 4th DCA 1990) (reversing conviction, holding that recording of confidential informant’s telephone conversation could not be admitted into evidence absent proof of informant’s consent to taping).
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Solomon Willis v. State, 840 So. 2d 1135 (Fla. 4th DCA 2003)…, 807 So. 2d 755 (Fla. 4th DCA 2002). In addition, “[t]he failure to preserve a potentially reversible error for appeal has been found to constitute ineffective assistance of counsel, sufficient to support a rule 3.850 motion.” See Daniels v. State, 806 So. 2d 563, 564 (Fla. 4th DCA 2002). Willis does not specifically allege counsel failed to request the instruction for the lesser-included offense. Rather he asserts that counsel was ineffective because he did not object when the trial court failed to give thi…
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Tidwell v. State, 844 So. 2d 701 (Fla. 1st DCA 2003)…ithout an opinion. As at least one other court has noted in similar circumstances, a per curiam affirmance [*703] without opinion on direct appeal “does not establish whether the specific issue was or was not preserved for appeal.” Daniels v. State, 806 So. 2d 563, 564 (Fla. 4th DCA 2002). In such a case, a per curiam affir-mance might just as well have been based on the conclusion that the issue was not preserved, as on the conclusion that the issue, though properly preserved, lacked merit. Because the fir…
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Brock R. Shade v. State, 59 So. 3d 1214 (Fla. 5th DCA 2011)…hat this court’s prior “per curiam affirmance without opinion on direct appeal does not establish whether the specific issue was or was not preserved for appeal.” Tidwell v. State, 844 So. 2d 701, 702-03 (Fla. 1st DCA 2003), citing Daniels v. State, 806 So. 2d 563, 564 (Fla. 4th DCA 2002). “In such a case, a per curiam affirmance might just as well have been based on the conclusion that the issue was not preserved, as on the conclusion that the issue, though properly preserved, lacked merit.” Id. at 703. Acc…
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
- Jackson v. State, 711 So. 2d 1371 (Fla. 4th DCA 1998)
- Davis v. State, 648 So. 2d 1249 (Fla. 4th DCA 1995)
- Payne v. State, 562 So. 2d 372 (Fla. 4th DCA 1990)