Be Careful With that Ineffectiveness of Trial Counsel on Direct Appeal Claim--You Could Waive Post-Conviction Remedies.

Terrance Hartley v. State, 1D15-3209, Dec. 21, 2016

Held:  A claim on direct appeal that trial counsel was ineffective for failing to move for judgment of acquittal can be denied on the merits if there is record evidence demonstrating that counsel was not ineffective as a matter of law.

Discussion:  Appellate counsel (private attorney) raised an ineffective assistance of trial counsel claim on direct appeal, arguing trial counsel was ineffective for failing to move for judgment of acquittal.  The First noted that the standard is whether there is substantial competent evidence to support the defendant's guilt, taking all conflicts and inferences in the State's favor.  Here, eyewitnesses and police officers testified and their testimony was such that a verdict of guilt could be supported.  The First notes that ineffectiveness claims on direct appeal are only granted when the error is apparent and it would be a waste of judicial resources to required a 3.850 motion, and says that by that same logic if it is apparent that counsel was not ineffective as a matter of law, the appellate court can (and here does) rule on the merits that counsel was not ineffective, thus barring a later 3.850 claim.

Held:  I have never seen this result before, but it is hard to argue with the logic.  If the court has reviewed the transcripts and they feature evidence of guilt such that the trial attorney was clearly not ineffective, why not rule that way and save the resources to be consumed with a 3.850 motion?  Of course, as a practitioner this is an illustration of why this sort of claim should rarely be made on direct appeal.  I am sympathetic to the fact that sometimes as a private attorney one has to raise whatever claims one can, but certainly one should try to do no harm to a client, which foreclosing a later 3.850 claim could be seen as being (although, on the other hand, if the 3.850 claim would not meritorious, theres not really any harm done).  In any event, such an argument obviously won't look good to an appellate court.

Witness Recanted?  Well, I Don't Believe Him.  Case Closed.  Tough Luck.

Darryl D. Ruth v. State, 1D15-4099, Dec. 21, 2016.

Held:  A post-conviction judge's finding that a witness recantation is not credible settles the matter, regardless of whether it was that same witnesses trial testimony that led to the conviction.

Discussion:  The main witness testified at trial that he was 100 percent sure that the defendant perpetrated the crime, and he was the only witness thereto.  Later, he wholly recanted and said he was 100 percent sure it wasn't the defendant.  The First goes through details of how this witnesses testimony changed dramatically throughout the pendency of the case, and the opinion is a disturbing read if one is concerned about the integrity of convictions based upon eyewitness testimony.  The trial court heard the recantation and said "I simply do not believe the witnesses testimony." and found that although it was possible the witness had lied at trial, it was more likely he was lying now about the recantation.  The First, commendably, notes that the defendant's criminal convictions and prison sentences rest on the word of an admitted liar, but says that regardless a court must deny a recantation claim when it is "not satisfied that the recantation is true".  The appellate court won't substitute its judgment for that of the fact-finder, and that is that.

My thoughts:  This is a difficult case to read.  A man is in prison based on the word of another man, and that other man gave constantly shifting stories and now has completely recanted.  The defendant actually waived his direct appeal to pursue this claim.  I think that the standard should be that in cases with no other evidence and a sole eyewitness who recants, if the trial judge does not know what is true and what isn't, a new trial should be ordered.  This would seem to be the essence of a reasonable doubt.  The price of incarcerating a potentially innocent defendant is too high for a lesser standard in this situation, especially given how much we now know about the problems with eyewitness identification.

If You Don't Know You Have Discretion, You Can't Exercise It.

Rakeem T. Patterson v. State, 4D15-133, Dec. 21, 2016

Held: A Prison Release Reoffender sentence can be imposed concurrently or consecutively, and if the judge thinks it has to be consecutively, new sentencing is required.

Discussion:  The State argued, and the trial judge believed, that because the defendant qualified as a PRR, his sentence had to be consecutive to another sentence he was serving.  This is not the case, such a sentence can be concurrent or consecutive.  When a judge mistakenly believes he or she has no discretion when in fact they do, the remedy is a new sentencing at which they can exercise said discretion.