DERRICK EMIL MIKELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Derrick Emil Mikell appealed the denial of his Rule 3.850 postconviction motion for ineffective assistance of counsel. The court affirmed the denial regarding his no contest plea to lewd act charges but reversed the summary denial of his claim that counsel was ineffective at his probation revocation sentencing hearing, finding counsel failed to inform the court of its statutory discretion to reinstate or modify probation.
The court affirmed the denial of the ineffective assistance claim regarding the original conviction and plea but reversed the summary denial of the claim regarding the revocation sentencing. Counsel's failure to present statutory authority permitting the court to continue probation after violation fell below the standard of reasonably effective counsel, and prejudice appeared on the record since the trial court would have considered continuing probation if counsel had presented the applicable law.
[1] A claim of ineffective assistance of counsel based on counsel's failure to inform the court of its discretion to reinstate probation following a violation is facially suf…
[2] Counsel's concession to a court's misimpression that it cannot reinstate probation following a violation falls below the standard of reasonably effective counsel.
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“When probation is violated, the court has the option to 'revoke, modify, or continue the probation or community control or place the probationer into a community control program.'”
Establishes the statutory discretion the trial court possessed to reinstate probation that defense counsel failed to present.
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Join FLexlaw to unlock all legal intelligenceMikell entered a no contest plea to two counts of committing a lewd act on a child under 16 in 2000 and was sentenced to ten years suspended and five …
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CASANUEVA, Judge.
Derrick Emil Mikell appeals from the denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Mr. Mikell contends that his counsel was ineffective in representing him when he entered his no contest plea to two counts of committing a lewd act on a child under the age of sixteen. His motion further alleges that his counsel’s representation fell below the standard of reasonably effective counsel when he was resentenced for those offenses following violation of his probation. After holding an evidentiary hearing, the postconvietion court denied the motion as to the issues directed to his convictions, and we affirm on those grounds. However, the court summarily denied Mr. Mi-kell’s claim that his counsel was ineffective in representing him at his sentencing following his violation of probation, and we reverse on that ground alone.
Following his no contest plea to the lewd act offenses in 2000, Mr. Mikell was sentenced to ten years’ incarceration, suspended, and placed on five years’ probation. After he committed various violations, his probation was revoked in 2002, and the court sentenced him to concurrent terms of ten years in prison.
Mr. Mikell’s rule 3.850 motion alleges that defense counsel was ineffective when he failed to apprise the sentencing court of its discretion to reinstate his client’s probation following violation as authorized by section 948.06(1), Florida Statutes (2002). Attached to the postconviction motion is a transcript of the sentencing hearing. The transcript reveals that, before the court imposed sentence, Mr. Mikell’s attorney offered mitigating evidence. When the judge stated that if she did not impose the suspended ten-year sentence she would “get appealed” and would “be reversed,” the defense attorney simply agreed: “I understand that, Your Honor.” Nevertheless, he placed the mitigating evidence on the record for the court’s consideration.
At the conclusion of the testimony of Mr. Mikell’s mother that her son would be a good candidate for continued probation or placement on community control, Mr. Mikell asked the court to have mercy on him. The judge responded: “I can’t. I’m not allowed to, legally.” The defense attorney stood silent and did not attempt to correct the court’s misimpression.
When probation is violated, the court has the option to “revoke, modify, or continue the probation or community control or place the probationer into a community control program.” § 948.06(1), Fla. Stat. (2002); Griffin v. State, 783 So. 2d 337 (Fla. 5th DCA 2001). Mr. Mikell has raised a facially sufficient claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). His attorney’s complete concession to the court’s assumption that it could not return his client to probation or community control fell below the standard expected of reasonably effective counsel. Furthermore, the record reflects that the trial court would have considered continuing Mr. Mikell on probation if defense counsel had presented the statutory and case law authorizing that option. Thus, prejudice appears on the record.
On direct appeal, Mr. Mikell raised the issue of whether the trial court erred in sentencing him at his revocation hearing. However, his direct appeal was affirmed without prejudice to his raising the issue in an appropriate postconviction motion. Mikell v. State, 855 So. 2d 686 (Fla. 2d DCA 2003). In this appeal, the State acknowledges that it conceded the merits of the sentencing issue on direct appeal, that it argued on direct appeal that the issue had not been preserved, and that this court affirmed without prejudice to Mr. Mikell’s right to seek postconviction relief. The State concludes its argument by stating that “the State does not oppose resentencing.” We therefore reverse the summary denial of this claim and remand for resentencing.
Upon remand, the judge who imposed the revocation sentence should preside unless it is necessary for another judge to do so. See Clemons v. State, 816 So. 2d 1180, 1181 (Fla. 2d DCA 2002); Cowart v. State, 860 So. 2d 1041, 1042 (Fla. 5th DCA 2003).
Affirmed in part; reversed in part; remanded for resentencing.
FULMER and CANADY, JJ„ Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Savage v. State, 120 So. 3d 619 (Fla. 2d DCA 2013)…n). Step Two Upon finding a violation of probation or community control, the court decides whether to revoke, modify, or continue it. See § 948.06(2)(a, e), Fla. Stat. (2011); Nadzo v. State, 24 So. 3d 690, 692 (Fla. 2d DCA 2009); Mikell v. State, 903 So. 2d 1054, 1055 (Fla. 2d DCA 2005); State v. Casner, 825 So. 2d 993, 993 (Fla. 2d DCA 2002); Brown v. State, 455 So. 2d 635 (Fla. 5th DCA 1984) (citing Harris v. State, 453 So. 2d 228 (Fla. 5th DCA 1984)). If the trial court revokes probation, it may impose a…
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Ganey v. State, 977 So. 2d 698 (Fla. 1st DCA 2008)…gs. See e.g. Flowers v. State, 947 So. 2d 639 (Fla. 4th DCA 2007); Hollander v. State, 920 So. 2d 204, (Fla. 4th DCA 2006); Gilbert v. State, 913 So. 2d 84, 85 (Fla. 2d DCA 2005); Phelps v. State, 911 So. 2d 186 (Fla. 1st DCA 2005); Mikell v. State, 903 So. 2d 1054, 1054 (Fla. 2d DCA 2005); Medrano v. State, 892 So. 2d 508 (Fla. 3d DCA 2004). Nevertheless, the appellant’s claims are without merit. Therefore, we affirm without further discussion. See Kennard v. State, 903 So. 2d 244, 245-46 (Fla. 1st DCA 2005…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Clemons v. State, 816 So. 2d 1180 (Fla. 2d DCA 2002)
- Griffin v. State, 783 So. 2d 337 (Fla. 5th DCA 2001)
- Cowart v. State, 860 So. 2d 1041 (Fla. 5th DCA 2003)
- Mikell v. State, 855 So. 2d 686 (Fla. 2d DCA 2003)
- Wilson v. State, 855 So. 2d 686 (Fla. 2d DCA 2003)