GERARDO BARRAGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gerardo Barragan appeals the denial of his post-conviction motion for ineffective assistance of counsel. The appellate court affirmed the trial court's denial of most grounds for relief but reversed as to one ground alleging counsel's failure to properly challenge the charge of attempted exposure of sexual organs, holding that conviction of a non-existent crime is fundamental error that can be raised at any time, including in post-conviction proceedings.
The court held that conviction of a non-existent crime is fundamental error that may be raised at any time, including in post-conviction proceedings, not merely on direct appeal. Accordingly, the trial court erred in denying post-conviction relief on the basis that the claim was or could have been raised on direct appeal, and the case was reversed and remanded for the trial court to consider the merits of the non-existent crime claim.
[1] A conviction for a non-existent crime constitutes fundamental error that can be raised at any time, including in a post-conviction relief proceeding.
[2] A claim of conviction for a non-existent crime is not procedurally barred from post-conviction relief simply because it could have been raised on direct appeal.
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Join FLexlaw to unlock all legal intelligence“[O]ne may never be convicted of a non-existent crime.”
Establishes the fundamental principle that conviction of a non-existent crime is never permissible, citing Achin v. State
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Join FLexlaw to unlock all legal intelligenceBarragan was convicted of attempted exposure of sexual organs. At trial, his counsel moved to dismiss the charge, arguing that attempted exposure of s…
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PLEUS, C.J.
The defendant appeals from the denial of his motion for post-conviction relief following an evidentiary hearing. The defendant raised numerous grounds alleging ineffective assistance of trial counsel. The trial court correctly denied relief as to all grounds, save for ground seven, on the basis that even assuming deficient performance, the defendant could not demonstrate any prejudice, i.e., that the result of the proceedings would have been differ ent.1 See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Jones v. State, 949 So. 2d 1021 (Fla.2006).
In denying ground seven, the trial court stated that this claim was predicated on trial counsel’s purported ineffectiveness in failing to object at trial to the charge of attempted exposure of sexual organs. Trial counsel had moved to dismiss the charge, arguing that attempted exposure of sexual organs is a non-existent crime but failed to obtain a ruling. The trial court, in denying relief, concluded:
Conviction of a non-existent crime is fundamental error which can be raised for the first time on appeal. Jordan v. State, 801 So. 2d 1032, 1034 (Fla. 5th DCA 2001). This Court is not required to determine whether there is such a crime. This claim was or could have been raised on direct appeal. Therefore, it cannot be relitigated by the filing of a motion under Fla. R.Crim. P. 3.850. See Medina v. State, 573 So. 2d 293 (Fla.1990). Post-conviction relief should be denied as to this issue.
“[Ojne may never be convicted of a non-existent crime.” Achin v. State, 436 So. 2d 30 (Fla.1982); see also Mundell v. State, 739 So. 2d 1201 (Fla. 5th DCA 1999). The trial court correctly noted that conviction for a non-existent crime is fundamental error which may be raised for the first time on direct appeal, but the error can actually be raised at any time, even in a post-conviction context. Moore v. State, 924 So. 2d 840 (Fla. 4th DCA 2006) (reversing denial of post-conviction relief where trial court erroneously ruled defendant was procedurally barred from raising claim that he had been convicted of nonexistent offense).
The trial court erroneously concluded that this claim could not be considered because it was or could have been raised on direct appeal. The denial of relief as to this ground is reversed and the trial court instructed to consider the merits of the claim.2
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
GRIFFIN and LAWSON, JJ., concur. . The defendant's counsel at the evidentiary hearing, when pressed by the court as to how any of these purported deficiencies, if corrected, would change the outcome, replied, "I don’t have an answer for it,” other than to have another trial and ''see where it got.”
. The record does not contain the operative judgment and sentence which form the basis for this conviction.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Moore v. State, 982 So. 2d 1205 (Fla. 5th DCA 2008)…e. . Although Mr. Moore never objected to his conviction for this offense, the conviction of a nonexistent crime is fundamental error, which may be raised for the first time on appeal. Merritt v. State, 712 So. 2d 384 (Fla.1998); Barragan v. State, 957 So. 2d 696, 697 (Fla. 5th DCA 2007); Fredericks v. State, 675 So. 2d 989 (Fla. 1st DCA 1996) (holding that conviction of nonexistent crime is fundamental error mandating reversal even when error was invited by defendant, as by request for a jury instruction on…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Medina v. State, 573 So. 2d 293 (Fla. 1990)
- Achin v. State, 436 So. 2d 30 (Fla. 1982)
- Jones v. State, 949 So. 2d 1021 (Fla. 2006)
- Moore v. State, 924 So. 2d 840 (Fla. 4th DCA 2006)
- Jordan v. State, 801 So. 2d 1032 (Fla. 5th DCA 2001)
- Mundell v. State, 739 So. 2d 1201 (Fla. 5th DCA 1999)