MITCHELL NEWKIRK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appellant failed to demonstrate prejudice from his counsel's alleged ineffective assistance, thus affirming the trial court's denial of postconviction relief.
Appellant sought postconviction relief alleging ineffective assistance of counsel, specifically regarding objections to prior convictions, mitigation …
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WARNER, J.
Appellant appeals the trial court’s denial of his motion for postconviction relief based upon allegations of his counsel’s ineffective assistance. Under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), appellant must show that any ineffective performance of counsel has prejudiced him in these proceedings. To that end, appellant must demonstrate a reasonable probability that the deficient performance affected the outcome of the proceedings or rendered them fundamentally unfair. See Provenzano v. State, 616 So. 2d 428, 431 (Fla.1993). Because he did not prove prejudice, we affirm.
Appellant’s allegations of failure to object to evidence of prior convictions which qualified appellant for an enhanced sentence do not show any prejudice, because he does not allege under oath that the convictions used to enhance his sentence were not his or that he did not qualify for an enhanced sentence. He also alleges that his counsel failed to present evidence to mitigate his sentence, but does not allege what that evidence would have been. Thus, he has made no showing of any effect on the outcome of the sentencing proceeding. Additionally, his allegations with respect to failure to request a speedy trial discharge also do not show that the proceeding was rendered fundamentally unfair or that the state could not have brought him to trial within the time periods allowed by the speedy trial rule.
Finally, he makes the curious claim that his trial counsel failed to file a notice of appeal, but the state attached a copy of the notice. This court entertained an appeal from the conviction and sentence. See Newkirk v. State, 898 So. 2d 228 (Fla. 4th DCA 2005). This claim is meritless.
Affirmed.
STEVENSON, C.J., and FARMER, J., concur.
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Ives v. State, 993 So. 2d 117 (Fla. 4th DCA 2008)…does not result in an illegal sentence. Because the instant motion was filed within the time for seeking relief under rule 3.850, we have considered whether the deficiency alleged by Ives could be raised pursuant to that rule. Cf. Newkirk v. State, 947 So. 2d 548 (Fla. 4th DCA 2006) (finding that a rule 3.850 movant failed to show prejudice from trial counsel’s failure to object to evidence of prior convictions where the movant did not allege that the convictions used to enhance his sentence were not his or…
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Hammond v. State, 34 So. 3d 58 (Fla. 4th DCA 2010)…ial within the fifteen-day recapture window. See Fla. R.Crim. P. 3.191(p)(3) (providing the State a total of [*60] fifteen days after a notice of expiration is filed to bring a defendant to trial). The trial court agreed and cited Newkirk v. State, 947 So. 2d 548 (Fla. 4th DCA 2006), where this court rejected just such a claim under similar circumstances. This court explained as follows: “[Appellant’s] allegations with respect to failure to request a speedy trial discharge also do not show that the proceedin…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Provenzano v. State, 616 So. 2d 428 (Fla. 1993)
- Newkirk v. State, 898 So. 2d 228 (Fla. 4th DCA 2005)