NATHANIEL JEROME OTTESEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Nathaniel Ottesen appeals the summary denial of his Rule 3.850 motion for postconviction relief based on thirteen claims of ineffective assistance of trial counsel. The court affirms five claims without discussion and one claim while certifying conflict, but reverses and remands seven claims that the trial court failed to address on the merits.
The court affirmed that counsel was not ineffective regarding the jury oath claim because Ottesen failed to allege the oath was never administered and showed no prejudice. The court reversed on the jury instruction claims, holding that Ottesen properly raised these claims in his Rule 3.850 motion even though he failed to object at trial. The court reversed and remanded six claims because the trial court failed to address them on the merits.
[1] A defendant may challenge counsel's performance through a motion for postconviction relief when counsel failed to preserve the right to appeal a jury instruction issue.
[2] A trial court errs in denying a postconviction relief claim regarding ineffective assistance of counsel for failing to request a limiting jury instruction without holding…
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Join FLexlaw to unlock all legal intelligence“A challenge to a jury instruction is properly raised on appeal, but when defense counsel has failed to preserve the right to appeal the issue, a defendant may challenge his counsel's performance through a motion for postconviction relief filed pursuant to rule 3.850.”
Establishes that Rule 3.850 motions are the proper vehicle to challenge jury instruction errors that were not preserved at trial.
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Join FLexlaw to unlock all legal intelligenceOttesen was convicted at trial and raised thirteen claims of ineffective assistance of counsel in a postconviction motion. Key claims included that tr…
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COVINGTON, Judge.
Nathaniel Jerome Ottesen appeals the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Ottesen raised thirteen claims of ineffective assistance of trial counsel. We affirm five claims without discussion. We affirm on the sixth claim and write to certify conflict. As to the remaining seven claims, we reverse and remand for further proceedings.
Ottesen alleged that his trial counsel was ineffective for failing to request a limiting jury instruction on the use of Ot-tesen’s prior convictions. He claimed that his counsel should have requested that the jury be instructed that it could not consider Ottesen’s prior convictions as substantive evidence of guilt. He also claimed that his counsel was ineffective for failing to rehabilitate him on direct examination by eliciting the fact that Ottesen pleaded guilty in his prior convictions. Ottesen argued that this information would have rehabilitated his credibility, thus affecting the outcome of the trial.
The trial court denied this claim on the basis that Ottesen waived his right to challenge the jury instructions by failing to object at trial. A challenge to a jury instruction is properly raised on appeal, but when defense counsel has failed to preserve the right to appeal the issue, a defendant may challenge his counsel’s performance through a motion for postconvietion relief filed pursuant to rule 3.850. See Harvey v. Dugger, 656 So. 2d 1253, 1256 (Fla.1995); Bouchard v. State, 847 So. 2d 598, 599 (Fla. 2d DCA 2003). Therefore, Ottesen properly raised this claim in his rule 3.850 motion, and the trial court erred in denying it without holding an evidentiary hearing or attaching portions of the record which conclusively refute it. See Gadson v. State, 773 So. 2d 1183 (Fla. 2d DCA 2000).
Ottesen further alleged that his counsel was ineffective for failing to object when the trial court failed to swear in the prospective jurors prior to voir dire. However, Ottesen failed to satisfy the deficiency prong of an ineffective assistance of counsel claim because he did not allege that the oath was never administered. See Davis v. State, 848 So. 2d 418 (Fla. 2d DCA 2003); Lott v. State, 826 So. 2d 457 (Fla. 1st DCA 2002), review denied, No. SC02-2426, 845 So. 2d 891 (Fla. May 6, 2003) (table decision). In addition, Ottesen did not demonstrate how he was prejudiced by his counsel’s failure to object. Therefore, he has not satisfied the prejudice prong of an ineffective assistance of counsel claim. See Davis, 848 So. 2d at 419-20. We affirm the trial court’s order on this claim, and we certify conflict with Fernandez v. State, 814 So. 2d 459 (Fla. 4th DCA 2001), as to this issue, as we did in Davis. 848 So. 2d at 420.
Ottesen also raises six claims in his motion that the trial court failed to address in its order of denial. Therefore, we reverse and remand for the trial court to consider the merits of the claims pursuant to the procedure set forth in rulé 3.850.
Affirmed in part, reversed in part, and remanded.
STRINGER and CANADY, JJ., Concur.
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Ottesen v. State, 899 So. 2d 1277 (Fla. 2d DCA 2005)…orida Rule of Criminal Procedure 3.850. We affirm the trial court’s denial with regards to claims one, two, and four through thirteen. However, the trial court failed to address claim three, as previously ordered by this court. See Ottesen v. State, 862 So. 2d 30 (Fla. 2d DCA 2003). Accordingly, this claim must once again be remanded to the trial court to conduct an evidentiary hearing or attach those portions of the record that conclusively refute claim three. Affirmed in part; reversed and remanded in pa…
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Valdes v. State, 944 So. 2d 416 (Fla. 3d DCA 2006)…PER CURIAM. Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d [*417] 674 (1984); Ottesen v. State, 862 So. 2d 30 (Fla. 2d DCA 2003).…
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Hartley v. State, 946 So. 2d 638 (Fla. 2d DCA 2007)…claim because “it is not and cannot be ineffective assistance of counsel to fail to ask the question as to whether or not somebody pled guilty or no contest to prior offenses.” ' In effect, the court summarily denied the claim. In Ottesen v. State, 862 So. 2d 30, 31 (Fla. 2d DCA 2003), however, the defendant asserted the same issues in his postconviction motion as Hartley does here. We held that the claims were properly raised in a rulé 3.850 motion. Therefore, in this case the postconviction court erred as…
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
- Harvey v. Dugger, 656 So. 2d 1253 (Fla. 1995)
- Fernandez v. State, 814 So. 2d 459 (Fla. 4th DCA 2001)
- LEE v. State, 826 So. 2d 457 (Fla. 1st DCA 2002)
- Lott v. State, 826 So. 2d 457 (Fla. 1st DCA 2002)
- Davis v. State, 848 So. 2d 418 (Fla. 2d DCA 2003)
- Tarris Gadson v. State, 773 So. 2d 1183 (Fla. 2d DCA 2000)
- Bouchard v. State, 847 So. 2d 598 (Fla. 2d DCA 2003)