ROQUE GAVILLA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that claims of ineffective assistance of counsel are generally not considered on direct appeal unless apparent on the face of the record.
Appellant was convicted of trafficking marijuana and appealed, raising issues of insufficient evidence and ineffective assistance of counsel for failu…
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Roque Gavilla (“appellant”) appeals his conviction and sentence for one count of trafficking in marijuana in an amount exceeding twenty-five pounds. He argues two issues on appeal. First, appellant asserts that his motion for judgment of acquittal should have been granted due to insufficient evidence. Second, he argues that his trial counsel was ineffective for not calling a witness at trial. We affirm on both issues, but write to address the second issue concerning appellant’s ineffective assistance of counsel claim.
Generally, appellate courts do not consider claims of ineffective assistance of counsel on direct appeal. Baker v. State, 937 So.2d 297, 299 (Fla. 4th DCA 2006). Such claims are more appropriately addressed by the trial court during proceedings for post-conviction relief. Id. (citing Jones v. State, 815 So.2d 772, 772 (Fla. 4th DCA 2002)); Bradberry v. State, 922 So.2d 457, 458 (Fla. 4th DCA 2006) (citing Gore v. State, 784 So.2d 418, 438 (Fla.2001)). An exception to that general rule is “ ‘when the error is apparent on the face of the record, which is rarely the case.’ ” Naim v. State, 978 So.2d 268, 269 (Fla. 4th DCA 2008) (quoting Desire v. State, 928 So.2d 1256, 1257 (Fla. 3d DCA 2006)).
Based on the face of this record, we do not find that appellant’s counsel was ineffective for not calling the witness. See Sims v. State, 82 So.3d 825, 825 (Fla. 4th DCA 2011) (affirming conviction on direct appeal because ineffective assistance of counsel claims were “not apparent on the face of the record”).
Accordingly, we affirm on this issue without prejudice so that appellant may raise any claim of ineffective assistance of counsel in subsequent proceedings under Florida Rule of Criminal Procedure 3.850.
Affirmed.
WARNER, LEVINE and KLINGENSMITH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mathis v. State, 204 So. 3d 104 (Fla. 1st DCA 2016)…a negotiated plea). I, therefore, concur in the affirmance of Appellant’s judgment and sentences on Counts 2 and 3 without prejudice to Appellant’s right to raise his claims in a proper motion for postconviction relief. See, e.g., Gavilla v. State, 178 So. 3d 965, 965 (Fla. 4th DCA 2015) (concluding that ineffectiveness of the appellant’s counsel was not established on the face of the record and affirming the appellant’s conviction and sentence without prejudice to the appellant raising his claim of ineffect…
Authorities Cited
- Gore v. State, 784 So. 2d 418 (Fla. 2001)
- Jones v. State, 815 So. 2d 772 (Fla. 4th DCA 2002)
- Desire v. State, 928 So. 2d 1256 (Fla. 3d DCA 2006)
- Bradberry v. State, 922 So. 2d 457 (Fla. 4th DCA 2006)
- Baker v. State, 937 So. 2d 297 (Fla. 4th DCA 2006)
- Nairn v. State, 978 So. 2d 268 (Fla. 4th DCA 2008)
- Watkins v. Al Lamberti, 82 So. 3d 825 (Fla. 4th DCA 2011)
- Sims v. State, 82 So. 3d 825 (Fla. 4th DCA 2011)