MICKEY KIDD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Mickey Kidd appeals his jury conviction for first-degree murder and attempted robbery, claiming ineffective assistance of counsel based on counsel's failure to object to allegedly inadmissible hearsay. The appellate court affirmed the conviction, holding that ineffective assistance claims must ordinarily be raised through post-conviction motion rather than direct appeal, and that the claimed deficiency was not apparent on the face of the record.
Ineffective assistance of counsel claims may not ordinarily be raised on direct appeal but must be raised through post-conviction motion, except in extraordinary circumstances where the deficiency is apparent on the face of the record. Here, the claimed ineffectiveness was not apparent from the record because counsel and client jointly decided to permit the testimony rather than counsel simply failing to object.
[1] Ineffective assistance of counsel claims are generally not raised for the first time on direct appeal.
[2] Ineffective assistance of counsel claims should ordinarily be raised through a motion for post-conviction relief.
Previewing 2 of 5 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“The general rule is that the adequacy of a lawyer's representation may not be raised for the first time on a direct appeal. The rationale for the rule is that that issue has not been raised or ruled on by the trial court.”
Establishes the fundamental procedural rule that ineffective assistance claims must be raised in post-conviction proceedings, not on direct appeal.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKidd was found guilty by jury of first-degree murder with a firearm and attempted robbery with a firearm. During trial, the state sought to introduce …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Witness Unavailability cases and more on FLexlaw
SHAHOOD, C.J.
Appellant, Mickey T. Kidd, was found guilty by a jury of one count of first-degree murder with a firearm and one count of attempted robbery with a firearm. The sole issue he raises on appeal is his claim that he received ineffective assistance of counsel.
“The general rule is that the adequacy of a lawyer’s representation may not be raised for the first time on a direct appeal. The rationale for the rule is that that issue has not been raised or ruled on by the trial court.” Dennis v. State, 696 So. 2d 1280, 1282 (Fla. 4th DCA 1997). Such claims should properly be raised on a motion for post-conviction relief. See Bradberry v. State, 922 So. 2d 457, 458 (Fla. 4th DCA 2006). Appellant asserts that the present case falls into the exception to the above rule, where an appellate court may review an ineffective assistance of counsel claim on direct appeal when the claimed ineffectiveness is apparent on the face of the record. Florida courts have recognized such an exception in limited circumstances. See Mansfield v. State, 758 So. 2d 636, 642 (Fla.2000).
Appellant cites Gordon v. State, 469 So. 2d 795, 798 (Fla. 4th DCA 1985), in which this court acknowledged the general rule against ineffective assistance claims on direct appeal but found that'trial counsel’s deficient performance was apparent on the face of the record. However, this court noted that Gordon was an extraordinary case because the appellant had pointed out 104 instances where defense counsel had failed to object to improper questions or comments by the prosecutor. Gordon, 469 So. 2d at 797. Concurring specially, Judge Anstead wrote to caution litigants that the court would not ordinarily hear ineffective assistance claims on direct appeal, and that the proper procedure for such a claim was a motion for post-conviction relief:
Such claims ordinarily turn on issues of fact and both sides are entitled to present relevant evidence to the trial court to resolve those issues. It is only because of the gross and patent showing of ineffectiveness virtually conceded by the state on this record that we are taking the highly unusual step of intervening at this stage of the proceedings.
Id. at 798. After the passage of section 924.051, Florida Statutes (Supp.1996), governing the terms and conditions of appeals and collateral review in criminal cases, appellate courts are even more reluctant to review an ineffective assistance claim on direct appeal. See Wingate v. State, 729 So. 2d 492, 493 (Fla. 1st DCA 1999)(finding appellant s ineffective assistance claim not properly raised on direct appeal in light of enactment of section 924.051, Florida Statutes (Supp.1996)); Dennis, 696 So. 2d at 1282 n. 1 (stating that this court would not reach question of continued viability of Gordon, in light of passage of section 924.051, Florida Statutes (Supp.1996)).
Appellant claims defense counsel rendered ineffective assistance because he allowed the state to introduce inadmissible hearsay in the form of prior testimony of an unavailable witness where state failed to prove the unavailability of the witness. The record shows that appellant’s trial counsel did not simply fail to object, but that appellant and his counsel discussed the matter and decided for their own reasons to allow the state to admit the testimony uncontested. We make no ruling on the trial court’s admission of the testimony. We hold only that ineffective assistance of counsel was not apparent from the face of the record.
We therefore affirm without prejudice to appellant’s ability to file a rule 3.850 motion as he may deem appropriate.
Affirmed.
POLEN and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Abdel Odeh v. State, 82 So. 3d 915 (Fla. 4th DCA 2011)…Crim. P. 3.850. Jean v. State, 41 So. 3d 1078, 1080 (Fla. 4th DCA 2010). Odeh has not shown that his case qualifies for the rare exception to this general rule where “the claimed ineffectiveness is apparent on the face of the record.” Kidd v. State, 978 So. 2d 868, 869 (Fla. 4th DCA 2008). Thus, we decline to reverse on direct appeal based on Odeh’s claim of ineffective assistance of counsel. Having addressed all issues raised on appeal, the judgment and sentence are affirmed. WARNER and LEVINE, JJ., concur…
-
Hills v. State, 78 So. 3d 648 (Fla. 4th DCA 2012)…L 2694434 (Fla. 4th DCA 2011). However, there is an exception in which “an appellate court may review an ineffective assistance of counsel claim on direct appeal when the claimed ineffectiveness is apparent on the face of the record.” Kidd v. State, 978 So. 2d 868, 869 (Fla. 4th DCA 2008). This exception is rarely applicable, Boyd v. State, 45 So. 3d 557, 560 (Fla. 4th DCA 2010), because “[s]uch claims ordinarily turn on issues of fact and both sides are entitled to present relevant evidence to the trial cour…
-
Curtis v. State, 204 So. 3d 463 (Fla. 4th DCA 2016)…es of ineffective assistance of counsel, and explain our reasoning. “[A]n appellate court may review an ineffective assistance of counsel claim on direct appeal when the claimed ineffectiveness is apparent on the face of the record.” Kidd v. State, 978 So. 2d 868, 869 (Fla. 4th DCA 2008). In considering the claim on direct appeal, an “appellate court must conduct a de novo review of the record to determine if a defendant’s claim meets the deficiency and prejudice prongs of Strickland [v. Washington, 466 U.S.…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mansfield v. State, 758 So. 2d 636 (Fla. 2000)
- Gordon v. State, 469 So. 2d 795 (Fla. 4th DCA 1985)
- Shawanna Dennis v. State, 696 So. 2d 1280 (Fla. 4th DCA 1997)
- Bradberry v. State, 922 So. 2d 457 (Fla. 4th DCA 2006)
- Styron v. State, 729 So. 2d 492 (Fla. 1st DCA 1999)
- Wingate v. State, 729 So. 2d 492 (Fla. 1st DCA 1999)