EVANS
v.
STATE
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Appellate counsel cannot be deemed ineffective for failing to raise ineffective assistance of trial counsel claims on direct appeal or for failing to raise unpreserved errors unless the error is fundamental.
[1] A claim of ineffective assistance of trial counsel is generally not cognizable on direct appeal.
[2] Appellate counsel cannot be deemed ineffective for failing to raise an error not preserved for appeal, unless the unpreserved error is fundamental.
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Join FLexlaw to unlock all legal intelligence“appellate counsel cannot be deemed ineffective for failing to raise an error not preserved for appeal, unless the unpreserved error is fundamental”
Court explaining the standard for when appellate counsel may be found ineffective regarding unpreserved errors
Frank Evans was convicted of aggravated battery. Evans petitioned for habeas corpus claiming his appointed appellate counsel was ineffective for faili…
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PER CURIAM.
Frank Evans filed a petition for writ of habeas corpus, alleging his appointed appellate counsel rendered ineffective assistance by failing to raise certain claims on the direct appeal from Evans’ conviction and sentence for aggravated battery.
Included in Evans’ petition are claims that appellate counsel (1) failed to raise several instances of trial counsel’s ineffective assistance; and (2) failed to raise an unpreserved error (the trial court’s failure to provide the jury with a written version of the final instructions delivered orally to the jury).
We deny the petition, as each of Evans’ asserted claims is without merit.1 See Gomez v. State, 44 Fla. L. Weekly D529 (Fla. 3d DCA Feb. 20, 2019) (holding a claim of ineffective assistance of trial counsel is generally not cognizable on direct appeal); Smith v. State, 194 So. 3d 483, 488 n. 2 (Fla. 3d DCA 2016) (same). See also Spencer v. State, 842 So. 2d 52, 73 (Fla. 2003) (holding appellate counsel cannot be deemed ineffective for failing to raise an error not preserved for appeal, unless the unpreserved error is fundamental); Nibert v. State, 508 So. 2d 1, 3 (Fla. 1987) (holding that failure to provide jury with written jury instructions was not fundamental error and was waived on direct appeal where not properly preserved).
Petition denied.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Evans v. State, 273 So. 3d 1068 (Fla. 3d DCA 2019)
Authorities Cited
- Dusty Ray Spencer v. State, 842 So. 2d 52 (Fla. 2003)
- Nibert v. State, 508 So. 2d 1 (Fla. 1987)
- Smith v. State, 194 So. 3d 483 (Fla. 3d DCA 2016)
- Gomez v. State, 273 So. 3d 156 (Fla. 3d DCA 2019)
- Evans v. State, 273 So. 3d 1068 (Fla. 3d DCA 2019)