JAMES E. LANG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Lang appealed the denial of his postconviction motion for ineffective assistance of counsel, arguing his trial attorney failed to preserve a suppression issue for appeal. The court affirmed, finding that even if counsel was ineffective, Lang suffered no prejudice because the firearm would have been admissible as fruit of a lawful search incident to arrest following his battery of a police officer.
The court affirmed the denial of postconviction relief because any ineffectiveness of counsel did not prejudice Lang. Even assuming the initial stop lacked reasonable suspicion, Lang's subsequent battery on the officer provided independent probable cause for his arrest and the search incident thereto in which the firearm was discovered, making the firearm admissible regardless of any initial illegality.
[1] An unlawful battery on a law enforcement officer can establish probable cause for arrest, even if the initial stop was based on a lack of reasonable suspicion.
[2] A defendant is not prejudiced by counsel's failure to preserve an issue for appeal if the appellate court would have affirmed the trial court's ruling on that issue.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Even assuming the officers in this case did not have reasonable suspicion to detain Mr. Lang for auto theft, Mr. Lang resisted the officer's stop with violence and committed a battery on a police officer. This act against the officer was unlawful regardless of any potential technical illegality in the officer's initial stop.”
Establishes the independent basis for probable cause and lawful search based on Lang's battery of the officer, negating any prejudice from failure to preserve the suppression issue.
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Join FLexlaw to unlock all legal intelligencePolice stopped Lang on December 18, 1998, suspecting auto theft. During the stop, Lang resisted violently and committed battery on a police officer. A…
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ALTENBERND, Judge.
James E. Lang appeals the trial court’s order denying his motion for postconviction relief. We affirm.
The police stopped Mr. Lang on December 18, 1998, because they believed he was committing auto theft. As a result of this stop, Mr. Lang was ultimately charged with six offenses, including aggravated battery on a law enforcement officer, felon in possession of a firearm, and possession of a firearm by a violent career criminal. Mr. Lang filed a pretrial motion to suppress evidence of the firearm found on his person, arguing that the officers did not have reasonable suspicion to detain him, and therefore, the firearm was tainted evidence.
The trial court denied his motion. Thereafter, Mr. Lang was convicted by a jury of the two offenses involving possession of the firearm. After his trial, he pleaded nolo contendere to the remaining charges of aggravated battery on a law enforcement officer, carrying a concealed firearm, alteration of a firearm serial number, and trespass.
In his timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, Mr. Lang primarily argued that his trial counsel was ineffective because she failed to preserve the suppression issue for appeal.1 The trial court conducted an evidentiary hearing on this claim and found that Mr. Lang’s lawyer failed to preserve the suppression issue for appeal.
Nevertheless, the trial court denied Mr. Lang’s postcon-viction motion.
We affirm the trial court’s denial of Mr. Lang’s motion because any ineffectiveness of counsel did not prejudice Mr. Lang. Even assuming the officers in this case did not have reasonable suspicion to detain Mr. Lang for auto theft, Mr. Lang resisted the officer’s stop with violence and committed a battery on a police officer. This act against the officer was unlawful regardless of any potential technical illegality in the officer’s initial stop. See, e.g., Nesmith v. State, 616 So. 2d 170, 171 (Fla. 2d DCA 1993).
Once Mr. Lang committed the battery against the police officer, the police had probable cause to arrest him and to conduct the search incident to that arrest, during which the firearm was discovered on his person. See Lennear v. State, 784 So. 2d 1181, 1183 (Fla. 5th DCA 2001) (citing Reed v. State, 606 So. 2d 1246 (Fla. 5th DCA 1992); Jones v. State, 570 So. 2d 433 (Fla. 5th DCA 1990)); see also Bradford v. State, 567 So. 2d 911, 914 (Fla. 1st DCA 1990).
Based on these facts and the case law, the trial court’s denial of Mr. Lang’s motion to suppress would have been affirmed on appeal. As such, defense counsel’s failure to preserve the suppression issue during trial, even if it constituted ineffective assistance, did not prejudice Mr. Lang.
Only one other claim merits discussion in this case. Following the evidentiary hearing in the postconviction proceeding, but prior to the entry of the trial court’s order, Mr. Lang filed amendments to his motion adding several additional grounds. The amendments were filed within the two-year period allowed for such motions.
The trial court regarded the amendments as untimely because they were filed after the evidentiary hearing.
The trial court denied the amendments without addressing the merits of the new grounds.
The trial court’s ruling was probably supported by our decision in McConn v. State, 708 So. 2d 308 (Fla. 2d DCA 1998) (en banc).
However, McConn was effectively overruled by the supreme court’s decision in Gaskin v. State, 737 So. 2d 509 (Fla.1999), which requires a trial court to address timely amendments that are filed prior to the entry of an order disposing of a postconviction motion.
Thus, the trial court should have considered Mr. Lang’s amendments. We have reviewed Mr. Lang’s amendments and conclude that the grounds raised are either facially insufficient or are conclusively refuted by the documents already in our record.
Accordingly, the trial court’s error was harmless.
Affirmed.
GREEN and SILBERMAN, JJ„ Concur. . We affirm the trial court's decision to deny relief on several other grounds without comment.
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Awilda Rodriguez v. State, 964 So. 2d 833 (Fla. 2d DCA 2007)…n 776.051(1), Florida Statutes, which precludes the defense of justifiable use of force when resisting an arrest regardless of the legality of the arrest, to encounters between citizens and the police that did not involve arrests. See Lang v. State, 826 So. 2d 433, 435 (Fla. 2d DCA 2002); Nesmith v. State, 616 So. 2d 170, 171-72 (Fla. 2d DCA 1993); cf. Kaigler v. State, 913 So. 2d 1254, 1255 (Fla. 2d DCA 2005) (answering in the negative the question of “whether the illegality of a stop during which a suspect…
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Ramirez v. State, 854 So. 2d 805 (Fla. 2d DCA 2003)…of the statutory time limit and before the trial court had ruled on the original motion, it was error for the trial court not to consider the merits of the new allegations. See Beard v. State, 827 So. 2d 1021, 1021 (Fla. 2d DCA 2002); Lang v. State, 826 So. 2d 433, 435 (Fla. 2d DCA 2002). The present case is governed by Gaskins because, although an order had been entered denying Ramirez’s motion in part, the trial court had not made a final determination about the merits of the remaining claim upon which the…
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Kaigler v. State, 913 So. 2d 1254 (Fla. 2d DCA 2005)…th v. State, 616 So. 2d 170, 171-72 (Fla. 2d DCA 1993) (“The use of force in resisting arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest.”); see also Lang v. State, 826 So. 2d 433, 435 (Fla. 2d DCA 2002) (in dicta, extending the Nesmith principle to illegal stops). Other district courts of appeal have ruled similarly. See, e.g., Perry v. State, 846 So. 2d 684, 589 (Fla. 4th DCA 2003) (holding that an officer’s noncompliance w…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gaskin v. State, 737 So. 2d 509 (Fla. 1999)
- Bradford v. State, 567 So. 2d 911 (Fla. 1st DCA 1990)
- Jones v. State, 570 So. 2d 433 (Fla. 5th DCA 1990)
- McCONN v. State, 708 So. 2d 308 (Fla. 2d DCA 1998)
- Reed v. State, 606 So. 2d 1246 (Fla. 5th DCA 1992)
- Nesmith v. State, 616 So. 2d 170 (Fla. 2d DCA 1993)
- Lennear v. State, 784 So. 2d 1181 (Fla. 5th DCA 2001)