ROBERT RANDALL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The appellate court affirmed the convictions and sentences of the appellant, finding no merit in his arguments regarding his absence from a charge conference, the denial of lesser included offense instructions, multiple sentences for a single transaction, or ineffective assistance of counsel on direct appeal.
The court held that the appellant's absence from the charge conference was not fundamental error, the failure to instruct on lesser included offenses was not error given the defense strategy, the imposition of multiple sentences was permissible, and the claim of ineffective assistance of counsel must be raised in the trial court via a Rule 3.850 motion, not on direct appeal.
[1] A defendant's presence is not required at a charge conference absent a statutory or rule-based requirement, or an objection raised in the trial court.
[2] A defendant may waive the right to jury instructions on lesser included offenses as a matter of trial strategy when the sole issue for the jury is the identity of the per…
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Join FLexlaw to unlock all legal intelligence“There is no requirement, by statute or rule, that a defendant be present at a charge conference and no objection to the procedure was made by the defendant in the trial court.”
Establishes the court's reasoning for rejecting the argument about the defendant's absence from the charge conference.
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Join FLexlaw to unlock all legal intelligenceThe appellant was charged with false imprisonment, six counts of robbery with a deadly weapon, and possession of a firearm during a criminal offense. …
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PER CURIAM.
The appellant was charged, by information containing a count of false imprisonment, six counts of robbery while carrying a deadly weapon, and one count of possession of a firearm while engaged in a criminal offense, to wit: robbery. He pleaded not guilty, was tried before a jury which returned a verdict of guilty on all counts. All sentences were to run concurrently with the longest sentence. This appeal ensued.
Four points are preserved for review. That the trial court erred in not having the defendant present during the charge conference. We do not find this constitutes fundamental error. There is no requirement, by statute or rule, that a defendant be present at a charge conference and no objection to the procedure was made by the defendant in the trial court. State v. Melendez, 244 So. 2d 137 (Fla.1971).
Error is urged in the failure of the trial judge to give instructions on lesser included offenses. The only question preserved for review by the jury was the identity of the culprit. The crimes were admitted; the defendant gave an alibi defense, and the only question to be determined by the jurors was the identity of the perpetrator of the crime. As a matter of trial strategy, the defendant could waive the charge on lesser included offenses in such a situation. See: Black v. State, 279 So. 2d 909 (Fla.3rd D.C.A. 1973).
There is also a contention that more than one sentence could not be imposed under the circumstances of the alleged single transaction. This is without merit in the instant case. See: Johnson v. State, 338 So. 2d 556 (Fla.3rd D.C.A. 1976).
Lastly, the appellant, by pro se brief, contends for the first time on appeal that the State supplied him with ineffective assistance of counsel through the Public Defender’s Office. This is not a proper subject of error on direct appeal, but should first be made in the trial court by a petition under Fla.R.Crim.P. 3.850. See: State v. Barber, 301 So. 2d 7 (Fla.1974).
Therefore, for the reasons above stated, the verdict, adjudications, and sentences be and they are hereby affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jones v. State, 384 So. 2d 736 (Fla. 4th DCA 1980)…the allegation of ineffective assistance of counsel. It is clear that a criminal defendant cannot initially raise ineffective assistance of counsel on a direct appeal from his conviction. State v. Barber, 301 So. 2d 7 (Fla. 1974); Randall v. State, 346 So. 2d 1233 (Fla.3d DCA 1977). Instead, the issue should be raised initially in a 3.850 motion before the trial court. We sympathize with the trial judge. In this case, Judge Thomas Coker, Jr., presided over the defendant’s trial where he was found guilty, conv…
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Maugeri v. State, 460 So. 2d 975 (Fla. 3d DCA 1984)…been requested by defense counsel, see Jones v. State, 197 So. 2d 829 (Fla. 3d DCA 1967). Finally, no error was involved in the fact that, without objection, the defendant was not present during a portion of the charge conference. Randall v. State, 346 So. 2d 1233 (Fla. 3d DCA 1977).…
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Valero v. State, 393 So. 2d 1197 (Fla. 3d DCA 1981)…ed for the first time on direct appeal and is a matter to be presented to the trial court under Florida Rule of Criminal Procedure 3.850. State v. Barber, 301 So. 2d 7 (Fla.1974); Jones v. State, 384 So. 2d 736 (Fla. 4th DCA 1980); Randall v. State, 346 So. 2d 1233 (Fla. 3d DCA 1977). Affirmed.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Barber, 301 So. 2d 7 (Fla. 1974)
- State v. Melendez, 244 So. 2d 137 (Fla. 1971)
- Johnson v. State, 338 So. 2d 556 (Fla. 3d DCA 1976)
- Black v. State, 279 So. 2d 909 (Fla. 3d DCA 1973)
- Del Moody v. State, 279 So. 2d 909 (Fla. 4th DCA 1973)