ROBERT SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Smith was convicted of cocaine possession and sentenced to 54 months in prison. He appealed challenging the constitutionality of a Florida statute that eliminated knowledge of the drug's illicit nature as an element of the offense and made it instead an affirmative defense, and also claiming ineffective assistance of counsel for failure to request a jury instruction on that defense.
The court held that the statutory amendment does not unconstitutionally shift the burden of proof. The court also held that the ineffective assistance of counsel claim was not appropriate for appellate review because no deficient performance by counsel is apparent on the face of the record and the issue should be raised through postconviction relief rather than direct appeal.
[1] A legislative amendment that recharacterizes knowledge of the illicit nature of a controlled substance as an affirmative defense, rather than an element of the offense, d…
[2] Claims of ineffective assistance of trial counsel are generally not reviewable for the first time on direct appeal.
Previewing 2 of 5 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“legislative amendment section 893.101 does not unconstitutionally shift the burden of proving an element of the offense to the defendant under the label of an affirmative defense”
The court's holding on the facial constitutionality challenge to the statute
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Join FLexlaw to unlock all legal intelligenceSmith was charged with possession of cocaine. Under the amended Florida statute (section 893.101), knowledge of the illicit nature of the controlled s…
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POLEN, J.
We affirm Robert Smith’s conviction for possession of cocaine and sentence of fifty-four months in prison. Smith challenges the facial constitutionality of section 893.101, Florida Statutes (2003), amended to eliminate knowledge of the illicit nature of the controlled substance as an element of any offense under Chapter 893 “Drug Abuse Prevention and Control” and make lack of such knowledge an affirmative defense. We hold that legislative amendment section 893.101 does not unconstitutionally shift the burden of proving an element of the offense to the defendant under the label of an affirmative defense. See Wright v. State, No. 4D04-499, 2005 WL 1026669 (Fla. 4th DCA May 4, 2005).
Smith also argues that he was denied effective assistance of trial counsel due to defense counsel’s failure to request that the jury be instructed on the defense of knowledge of the illicit nature of the substance. The general rule is that the adequacy of a lawyer’s representation may not be raised for the first time on a direct appeal. Bruno v. State, 807 So. 2d 55 (Fla.2001).
An appellate court must confine itself to a review of only those questions which were before the trial court and upon which a ruling adverse to the appealing party was made. Dennis v. State, 696 So. 2d 1280, 1282 (Fla. 4th DCA 1997).
The proper method of raising such an issue is by way of a postconviction relief motion in the trial court, which “allows full development of the issues of counsel’s incompetence and the effect of counsel’s performance on the proceedings.” Grant v. State, 864 So. 2d 503, 505 (Fla. 4th DCA 2004). “Instances where the appellate court will address an ineffectiveness claim on the face of an appellate record are rare indeed.” Henley v. State, 719 So. 2d 990, 990 (Fla. 4th DCA 1998).
This is because “such claims ordinarily turn on issues of fact and both sides are entitled to present relevant evidence to the trial court to resolve those issues.” Id.
“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.” Grant v. State, 864 So. 2d at 505. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court held that to establish ineffective assistance of counsel, a defendant must affirmatively establish both that (1) counsel performed outside the broad range of competent performance and (2) the deficient performance was so serious that the defendant was deprived of a fair trial. The purpose of such review “is not to grade counsel’s performance.” Id. at 2069. “[Tjhere is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. In the present case, because no deficient performance by counsel is apparent on the face of the record, we hold that this issue is not appropriate for appellate review.
Lastly, we affirm without discussion the trial court’s denial of Smith’s motion for judgment of acquittal, as there was sufficient evidence that he had the required knowledge of the presence of cocaine.
Based on the foregoing, the judgment and sentence are affirmed.
WARNER and HAZOURI, JJ., concur.
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Jasper Little v. State, 77 So. 3d 722 (Fla. 3d DCA 2011)…e as an element of the crime, is unconstitutional. As was correctly held in Tolbert v. State, 925 So. 2d 1148 (Fla. 4th DCA, 2006), Wright v. State, 920 So. 2d 21 (Fla. 4th DCA 2005), [*723] review denied, 915 So. 2d 1198 (Fla.2005), Smith v. State, 901 So. 2d 1000 (Fla. 4th DCA 2005), review denied, 928 So. 2d 336 (Fla.2006), and Burnette v. State, 901 So. 2d 925 (Fla. 2d DCA 2005), however, it is not. 929 So. 2d at 665.…
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State v. Washington, 114 So. 3d 182 (Fla. 3d DCA 2012)…n v. State, 37 So. 3d 975 (Fla. 1st DCA 2010); Harris v. State, 932 So. 2d 551 (Fla. 1st DCA 2006); Taylor, 929 So. 2d at 665; Tolbert v. State, 925 So. 2d 1148 (Fla. 4th DCA 2006); Wright v. State, 920 So. 2d 21 (Fla. 4th DCA 2005); Smith v. State, 901 So. 2d 1000 (Fla. 4th DCA 2005), review denied, 928 So. 2d S36 (Fla.2006); Burnette v. State, 901 So. 2d 925 (Fla. 2d DCA 2005). On July 27, 2011, a federal trial court judge issued a ruling in Shelton v. Department of Corrections, 802 F. Supp. 2d 1289 (M.D.Fl…
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Taylor v. State, 929 So. 2d 665 (Fla. 3d DCA 2006)…ubstance as an element of the crime, is unconstitutional. As was correctly held in Tolbert v. State, 925 So. 2d 1148 (Fla. 4th DCA, 2006), Wright v. State, 920 So. 2d 21 (Fla. 4th DCA 2005), review denied, 915 So. 2d 1198 (Fla.2005), Smith v. State, 901 So. 2d 1000 (Fla. 4th DCA 2005), review denied, No. SC05-1120, 928 So. 2d 336 (April 4, 2006), and Burnette v. State, 901 So. 2d 925 (Fla. 2d DCA 2005), however, it is not. [*666] The other point presents no error. Affirmed.…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Bruno v. State, 807 So. 2d 55 (Fla. 2001)
- Shawanna Dennis v. State, 696 So. 2d 1280 (Fla. 4th DCA 1997)
- Henley v. State, 719 So. 2d 990 (Fla. 4th DCA 1998)
- Grant v. State, 864 So. 2d 503 (Fla. 4th DCA 2004)