BRYAN GORDON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bryan Gordon appealed the denial of his rule 3.850 post-conviction motion, which raised five ineffective assistance of counsel claims. The trial court granted an evidentiary hearing on claims 1-4, granted relief on claim 2 (ordering resentencing), and denied the remaining claims. The appellate court affirmed the denial of claim 5 and affirmed without comment the denial of the other claims.
Counsel's failure to preserve an issue for appeal does not demonstrate the prejudice necessary to establish an ineffective assistance of counsel claim under Strickland. Gordon failed to demonstrate that withdrawal of his plea was necessary to correct a manifest injustice or that there was a reasonable probability a rule 3.170(l) motion would have been granted.
[1] A claim of ineffective assistance of counsel based on counsel's failure to preserve an issue for appeal does not establish Strickland prejudice when the prejudice focuses…
[2] To establish Strickland prejudice for ineffective assistance of counsel regarding a plea, a defendant must demonstrate a reasonable probability that withdrawal of the ple…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Counsel's failure to preserve an issue for appeal does not show the prejudice necessary to establish an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).”
Establishes the core legal principle that appellate preservation failures do not constitute Strickland prejudice
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Join FLexlaw to unlock all legal intelligenceGordon filed a rule 3.850 motion raising five ineffective assistance of counsel claims. The trial court held an evidentiary hearing on claims 1 throug…
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Bryan Gordon appeals the denial of a rule 3.850 motion following an evidentiary *580hearing. Gordon’s motion raised five claims. The tidal court granted an eviden-tiary hearing on claims 1 through 4. Following the hearing, the court granted relief on claim 2, ordering resentencing. The court denied claims 1, 3, and 4 and “all other requested relief.” Although the court did not expressly discuss claim 5, we conclude that it was summarily denied, and because the claim was insufficient, we affirm.
In claim 5, appellant alleged his attorneys were ineffective for filing a motion to mitigate his sentence rather than a rule 3.170(l) motion to withdraw his plea. Appellant alleged that he was prejudiced by counsel filing the wrong motion because the issue was not preserved for appeal. Counsel’s failure to preserve an issue for appeal does not show the prejudice necessary to establish an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strobridge v. State, 1 So.3d 1240, 1242 (Fla. 4th DCA 2009). Strickland prejudice focuses on the proceeding being challenged, here the plea proceedings in the trial court. See Strobridge, 1 So.3d at 1242 (discussing Carratelli v. State, 961 So.2d 312 (Fla.2007)). Appellant did not demonstrate through his other claims or any additional allegations that withdrawal of his plea was necessary to correct a manifest injustice and that there was a reasonable probability a rule 3.170(l) motion would have been granted.
We affirm the summary denial of claim 5 and affirm without comment the denial of the other claims.
Affirmed.
GROSS, LEVINE and CONNER, JJ., concur.
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Citator
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Carratelli v. State, 961 So. 2d 312 (Fla. 2007)
- Strobridge v. State, 1 So. 3d 1240 (Fla. 4th DCA 2009)