SHAWNTRE SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Shawntre Smith appeals his conviction for attempted armed robbery with a firearm, arguing the State failed to prove a prima facie case and that he was denied a fair trial through cumulative errors. The appellate court affirmed his conviction, finding the first issue was not preserved for appeal and the second issue was more appropriately addressed through post-conviction relief.
The appellate court affirmed Smith's conviction and sentence. The first issue regarding insufficient evidence was not preserved for appellate review and no fundamental error was found. The second issue, suggesting ineffective assistance of counsel, is more appropriately addressed through a timely, sworn motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 rather than on direct appeal.
[1] An appellate court will not consider an issue that has not been presented to the lower court in a manner that specifically addresses the contentions asserted, except in c…
[2] Ineffective assistance of counsel claims, even if persuasive on direct appeal, are generally more appropriately addressed in the trial court via a motion for post-convict…
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Join FLexlaw to unlock all legal intelligence“The sole exception to the contemporaneous objection rule applies where the error is fundamental.”
Establishes that unpreserved issues are not reviewable on appeal unless they constitute fundamental error
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Join FLexlaw to unlock all legal intelligenceShawntre Smith was convicted by jury verdict of attempted armed robbery with a firearm under Florida Statutes sections 812.13(2)(a) and 777.04. Smith …
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Shawntre Smith appeals from a judgment and sentence entered upon the jury’s verdict finding Smith guilty of attempted armed robbery with a firearm pursuant to sections 812.13(2)(a) and 777.04, Florida Statutes (2007). He first contends that because the State failed to prove a prima facie case of attempted robbery, the trial court should have granted the motion for judgment of acquittal. He next asserts he was denied a fair trial based on a combination of errors. The first issue was not preserved for appellate review, and we do not find fundamental error. See F.B. v. State, 852 So.2d 226, 229 (Fla.2003) (“The sole exception to the contemporaneous objection rule applies where the error is fundamental.”); Nevels v. State, 685 So.2d 856, 857 (Fla. 2d DCA 1995) (“Except in cases of fundamental error, appellate courts will not consider an issue that has not been presented to the lower court in a manner that specifically addresses the contentions asserted.”). To the extent the second issue suggests any error at all, we conclude it argues the type of “ineffective assistance of counsel” that, although somewhat persuasive on direct appeal, is more appropriately addressed in the trial court by a timely, sworn motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. See Smith v. State, 998 So.2d 516, 522-23 & n. 5 (Fla.2008); White v. State, 977 So.2d 680, 681-82 (Fla. 1st DCA 2008); Neal v. State, 854 So.2d 666, 670 (Fla. 2d DCA 2003); Boykin v. State, 725 So.2d 1203 (Fla. 2d DCA 1999). Accordingly, we AFFIRM Smith’s conviction and sentence, without prejudice to his right to seek post-conviction relief.
KAHN, BENTON, and VAN NORTWICK, JJ., concur.
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- Am. Home Assurance Co. v. Rosen Bldg. Supplies, Inc., 854 So. 2d 666 (Fla. 3d DCA 2003)
- Stephon W. Boykin v. State, 725 So. 2d 1203 (Fla. 2d DCA 1999)
- Jamil White v. State, 977 So. 2d 680 (Fla. 1st DCA 2008)
- Nevels v. State, 685 So. 2d 856 (Fla. 2d DCA 1995)