SCOTTIE MCMULLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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McMullen appeals his convictions for sale of cocaine and possession with intent to sell within 1,000 feet of a place of worship. He raises claims of ineffective assistance of counsel, prosecutorial misconduct, judicial bias, and double jeopardy. The court affirms all convictions.
The court affirms all convictions. Ineffective assistance of counsel claims are not cognizable on direct appeal absent circumstances where incompetence is apparent on the face of the record and prejudice is obvious. The trial judge's actions were not objected to by defense counsel and were largely prompted by defense counsel's own actions. Double jeopardy is not violated because possession is not an essential element of sale, following State v. McCloud.
[1] Claims of ineffective assistance of trial counsel are generally not cognizable on direct appeal and should be raised through a motion for post-conviction relief.
[2] Appellate courts will only address claims of ineffective assistance of counsel on direct appeal if the incompetence and ineffectiveness are apparent on the face of the re…
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Join FLexlaw to unlock all legal intelligence“Only in cases where the incompetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is obvious do appellate courts address this issue on direct appeal.”
Establishes the standard for raising ineffective assistance claims on direct appeal
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Join FLexlaw to unlock all legal intelligenceMcMullen was convicted of sale of cocaine within 1,000 feet of a place of worship and possession of cocaine with intent to sell or deliver within 1,00…
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McMullen appeals from his judgment and sentences for sale of cocaine within 1,000 feet of a place of worship1 and possession of cocaine with intent to sell or deliver within 1,000 feet of a place of worship.2 He raises three points on appeal. We affirm.
First, McMullen claims he was denied effective assistance of counsel and a fair trial resulting from prosecutorial misconduct compounded by deficiencies of trial counsel. With rare exceptions, ineffective assistance of trial counsel claims are not cognizable on direct appeal. Gore v. State, 784 So. 2d 418 (Fla.2001); Dorsey v. State, 847 So. 2d 587 (Fla. 5th DCA 2003). They should normally be raised on a motion for post-conviction relief in the trial court where the issues of counsel’s incompetence and ineffectiveness can be fully developed, if necessary, after an evidentiary hearing. Grant v. State, 864 So. 2d 503 (Fla. 4th DCA 2004). Only in cases where the incompetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is obvious do appellate courts address this issue on direct appeal. Gore; White v. State, 850 So. 2d 624 (Fla. 2d DCA 2003); Noble v. State, 543 So. 2d 402 (Fla. 4th DCA 1989). We find that McMullen’s claims in this point fall into “the normal” category and thus we do not consider them on the merits.
Second, McMullen contends that the trial judge departed from his role as a neutral arbiter and, instead, acted as a second prosecutor by assisting the state and rectifying the shortcomings in the state’s case. See Gamble v. State, 492 So. 2d 1132 (Fla. 5th DCA 1986)(judge departed from his role as impartial conductor of trial by accusing defense counsel of being untruthful). In this case, the complained-of actions by the trial judge were not objected to by defense counsel, and in fact, were largely prompted by or necessitated by actions taken by defense counsel.
Third, McMullen contends his convictions for sale of cocaine and possession of the same cocaine with intent to sell or deliver, violates double jeopardy. The Florida Supreme Court answered this question in State v. McCloud, 577 So. 2d 939 (Fla.1991). It concluded that there are situations in which a sale can occur without possession and thus possession is not an essential element of sale, citing section 775.021(4)(a), Florida Statutes. Therefore, the court held that the possession count was not a lesser-included offense of the crime of sale. This case is factually indistinguishable from McCloud, because the prosecution established McMullen was in possession of cocaine with the intent to sell it, and that he sold some to a confidential informant.
AFFIRMED.
THOMPSON and MONACO, JJ„ concur. . § 893.13(1)(e)1. Fla. Stat. . § 893.13(l)(e)l„ Fla. Slat.
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Cited By (12 total)
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Aversano v. State, 966 So. 2d 493 (Fla. 4th DCA 2007)…2d 418, 438 (Fla.2001). “Only in cases where the incompetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is obvious do appellate courts address this issue on direct appeal.” McMullen v. State, 876 So. 2d 589, 590 (Fla. 5th DCA 2004) (citations omitted). Aversano acknowledges that ineffective assistance of counsel claims are generally not cognizable on direct appeal, but contends that the ineffective assistance is apparent on the face of the record. We…
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Thomas v. State, 61 So. 3d 1157 (Fla. 1st DCA 2011)…not a lesser-included offense. Id. at 941 (italics removed; emphasis added). This explanation suggests the McCloud court was not focused exclusively on subsection (4)(b)3.1 On the authority of McCloud, the Fifth District held in McMullen v. State, 876 So. 2d 589 (Fla. 5th DCA 2004), that dual convictions for sale of cocaine within 1,000 feet of a place of worship and possession of the same cocaine with intent to sell or deliver within 1,000 feet of a place of worship did not constitute double jeopardy. Simi…1 / 2
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Morris v. State, 909 So. 2d 428 (Fla. 5th DCA 2005)…ct appeal. They should normally be raised on a motion for post-conviction relief in the trial court where the issues of counsel’s incompetence and ineffectiveness can be fully developed, if necessary, after an evidentiary hearing. McMullen v. State, 876 So. 2d 589 (Fla. 5th DCA 2004). In Hagen v. State, 898 So. 2d 977 (Fla. 5th DCA 2005), this court held that a claim of ineffective assistance of counsel should be asserted in a post-conviction motion, instead of on direct appeal, in circumstances somewhat sim…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. McCLOUD, 577 So. 2d 939 (Fla. 1991)
- Gore v. State, 784 So. 2d 418 (Fla. 2001)
- Gamble v. State, 492 So. 2d 1132 (Fla. 5th DCA 1986)
- Grant v. State, 864 So. 2d 503 (Fla. 4th DCA 2004)
- Dorsey v. State, 847 So. 2d 587 (Fla. 5th DCA 2003)
- Noble v. State, 543 So. 2d 402 (Fla. 4th DCA 1989)
- Scottie Lee White v. State, 850 So. 2d 624 (Fla. 2d DCA 2003)