JOSEPH LEE MCCLOUGH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph McClough appealed his sentence for robbery with a firearm, claiming it violated a negotiated sentencing cap of twenty years agreed upon at his plea hearing. The Florida appellate court affirmed the sentence, holding that while the trial court may have exceeded the cap, McClough's counsel's failure to object or file a motion to withdraw the plea did not constitute ineffective assistance of counsel reviewable on direct appeal.
The appellate court held that counsel's failure to object to the sentence or file a motion to withdraw the plea does not constitute ineffective assistance of counsel reviewable on the face of the record on direct appeal, as a tactical explanation for counsel's silence is conceivable given the trial court's statements at sentencing.
[1] Claims of ineffective assistance of trial counsel are typically raised in a post-conviction motion, not on direct appeal.
[2] Ineffectiveness of counsel may be addressed on direct appeal only when the claim is apparent on the face of the record and would be a waste of judicial resources to requi…
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Join FLexlaw to unlock all legal intelligence“The general rule is that a claim of ineffective assistance of counsel may not be raised on direct appeal.”
Establishes the baseline rule that ineffective assistance claims are normally not reviewable on direct appeal.
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Join FLexlaw to unlock all legal intelligenceMcClough pleaded guilty to robbery with a firearm and possession of a firearm by a convicted felon. The State agreed to cap his sentence at twenty yea…
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Joseph McClough challenges his sentence for robbery with a firearm, arguing that it violated the negotiated sentencing cap agreed to in return for McClough’s plea of guilty. McClough argues that his counsel was ineffective on the face of the record for failing to object to a sentence that exceeded the cap agreed to by the State and accepted by the trial court at the plea hearing and for failing to file a motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(i).
McClough entered a plea to charges of robbery with a firearm and possession of a firearm by a convicted felon. In exchange for the plea, the State agreed to cap McClough’s sentence at twenty years with a ten-year minimum-mandatory term on the robbery charge and a concurrent sentence on the possession charge. The trial court accepted McClough’s plea and expressly agreed to the twenty-year cap, explaining to McClough that he was facing a maximum term of twenty years in prison and that he could be sentenced to a period of supervision following the ten-year minimum mandatory. Sentencing was then set for a later date.
At the sentencing hearing, following the testimony of various witnesses and argument from both the State and the defense, the trial court found no mitigating factors and concluded that but for the agreement, the court would have sentenced McClough to the maximum of life in prison. The court then sentenced McClough to twenty years in prison, followed by two years of community control, and a ten-year minimum-mandatory term on the robbery conviction. The court also sentenced McClough to a concurrent fifteen years, *160with a three-year minimum mandatory on the possession conviction.
It is clear that in sentencing McClough the trial court exceeded the negotiated cap. However, this issue was not preserved for review as trial court error. Fla. R.App. P. 9.140(b)(2)(A)(ii)(b); see Ross v. State, 848 So.2d 392, 392 (Fla. 2d DCA 2003). As such, we must consider McClough’s claim that counsel’s inaction amounted to ineffective assistance of counsel on the face of the record.
“The general rule is that a claim of ineffective assistance of counsel may not be raised on direct appeal.” Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002). However, “[o]n rare occasions, the appellate courts make an exception to this rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.” Id.; see also Smith v. State, 998 So.2d 516, 523 (Fla.2008) (concluding an appellate court may address an ineffective assistance claim on direct appeal only in “the rare case[] where both prongs of Strickland — the error and the prejudice-are manifest in the record”).
Counsel’s failure to file a motion to withdraw McClough’s plea is not per se ineffectiveness on the face of the record. See Williamson v. State, 974 So.2d 582, 584 (Fla. 2d DCA 2008). Neither is his failure to object to the sentence at the hearing. Given the trial court’s statements at sentencing, we can conceive of a tactical explanation for counsel’s silence. See Henson v. State, 977 So.2d 736, 739 (Fla. 2d DCA 2008); Williamson, 974 So.2d at 584. Counsel had a reasonable basis to be concerned that given another opportunity, the court would have allowed McClough to withdraw his plea and sentenced him to a significantly longer term. See Rollman v. State, 887 So.2d 1233, 1235 (Fla.2004); Goins v. State, 672 So.2d 30, 31 (Fla.1996). Thus, we cannot grant McClough relief on direct appeal.
Our affirmance is without prejudice to McClough filing a timely motion under Florida Rule of Criminal Procedure 3.850. See Hettick v. State, 977 So.2d 797, 798 (Fla. 2d DCA 2008).
Affirmed.
WHATLEY and KHOUZAM, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Phillips v. State, 225 So. 3d 269 (Fla. 4th DCA 2017)…n this case is analogous to that in McClough v. State, where the Second District Court of Appeal held that defense counsel was not ineffective in failing to object to the sentence imposed even though the sentence imposed exceeded the negotiated cap. 74 So. 3d 158, 160 (Fla. 2d DCA 2011). As we do here, the court in McClough concluded: “we can conceive of a tactical explanation for counsel’s silence.. Counsel had a reasonable basis to be concerned that given another opportunity, thé court would have allowed […
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Simmons v. State, 228 So. 3d 1181 (Fla. 2d DCA 2017)…(Fla. 2d DCA 2008) (“Both sides recognize that the trial court is not bound by any plea agreement.”). However, to preserve this issue for review, Simmons was required to file a motion to withdraw his plea, which he did not do. See McClough v. State, 74 So. 3d 158, 160 (Fla. 2d DCA 2011). Simmons argues that defense counsel’s failure to object at sentencing and failure to file a motion to withdraw the plea constitutes ineffective assistance of counsel on the face of the record, relying upon cases such as Low…
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Williamson v. State (Fla. 2d DCA 2020)
Authorities Cited
- Corzo v. State, 806 So. 2d 642 (Fla. 2d DCA 2002)
- Kit Goins v. State, 672 So. 2d 30 (Fla. 1996)
- Smith v. State, 998 So. 2d 516 (Fla. 2008)
- Hettick v. State, 977 So. 2d 797 (Fla. 2d DCA 2008)
- Errol Austin Rollman v. State, 887 So. 2d 1233 (Fla. 2004)
- Bell v. State, 977 So. 2d 736 (Fla. 5th DCA 2008)
- Farrulla v. State, 848 So. 2d 392 (Fla. 5th DCA 2003)
- Ruffino Guebara v. State, 974 So. 2d 582 (Fla. 5th DCA 2008)
- Williamson v. State, 974 So. 2d 582 (Fla. 2d DCA 2008)