                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

SHEENA LATSON,                        NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D12-3620

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed June 17, 2016.

An appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.

David W. Collins, Collins Law Firm, Monticello, Terry Roberts of the Law Office
of Terry P. Roberts, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      In this direct appeal, appellant Sheena Latson raises six claims of ineffective

assistance of counsel. Because appellant’s claims are not apparent on the face of

the record, they must be addressed by motion for post-conviction relief. See
Beazley v. State, 148 So. 3d 552, 554 (Fla. 1st DCA 2014) (“Generally, a claim of

ineffective assistance of counsel may not be raised on direct appeal.”); see also

Aversano v. State, 966 So. 2d 493, 494-95 (Fla. 4th DCA 2007) (“With rare

exceptions, ineffective assistance of counsel claims should be raised in a motion

for post-conviction relief because they are generally fact-specific.”); Corzo v.

State, 806 So. 2d 642, 645 (Fla. 2d DCA 2002) (stating that an ineffective

assistance of counsel claim may be considered on direct appeal “when the

ineffectiveness is obvious on the face of the appellate record, the prejudice caused

by the conduct is indisputable, and a tactical explanation of the conduct is

inconceivable”).

      Appellant also alleges the order of probation incorrectly indicates that she

entered a plea of nolo contendere rather than showing she was found guilty after a

jury trial. Because Appellant did not raise this claim to the trial court either by

objection at sentencing or by motion to correct sentencing error pursuant to Florida

Rule of Criminal Procedure 3.800(b), she is not entitled to relief. See Thomas v.

State, 763 So. 2d 316, 316 n.1 (Fla. 2000) (refusing to correct an unpreserved

scrivener’s error where neither the defendant nor the State sought to correct it by

filing a motion to correct sentence pursuant to Florida Rule of Criminal Procedure

3.800(b)); Perkins v. State, 53 So. 3d 1141 (Fla. 2d DCA 2011) (refusing to

address scrivener’s error in the written judgments and sentences “because it was

                                         2
not preserved either before this appeal by objection in the trial court or while this

appeal was pending by the filing of a motion to correct sentencing error pursuant to

Florida Rule of Criminal Procedure 3.800(b)(2)”); Johnson v. State, 954 So. 2d

702, 702-03 (Fla. 1st DCA 2007) (refusing to correct failure to check “concurrent”

on written sentence, a scrivener’s error, “because the issue was not preserved for

appeal by the filing of a timely motion to correct sentencing error pursuant to

Florida Rule of Criminal Procedure 3.800(b)”); Proctor v. State, 901 So. 2d 994,

995 (Fla. 1st DCA 2005) (refusing to correct scrivener’s errors in written judgment

because “absent the trial court’s ruling on a rule 3.800(b)(2) motion, these errors

were not preserved”).

      AFFIRMED.

RAY and OSTERHAUS, JJ., CONCUR; WINOKUR, J., CONCURS WITH
OPINION.




                                         3
WINOKUR, J., concurring.

         In this appeal, appellant does not raise a single claim of preserved error or

even a claim that any error below is fundamental. Instead, appellant identifies

numerous alleged specific instances of “ineffective assistance of counsel on the

face of the record,” and seeks correction of a scrivener’s error that she never asked

the trial court to correct. I concur in the majority opinion, but write separately to

discuss the growing frequency of claims of “ineffective assistance of counsel on

the face of the record” as an unjustifiable substitute for claims of fundamental

error.

                         A. Appellate review in criminal cases

         Section 924.051(2), Florida Statutes, provides that the right to direct appeal

“may only be implemented in strict accordance with the terms and conditions” as

set forth in that statute. Section 924.051(3), Florida Statutes, prohibits an appeal in

a criminal case unless the claimed error is properly preserved or, if not properly

preserved, constitutes fundamental error. The Legislature could have added “or

constitutes ineffective assistance of counsel on the face of the record” if it wished

to permit a second exception to the preservation requirement, but it did not. In

other words, if the defendant does not properly preserve a claimed error, the only

statutorily-authorized basis for appellate relief is a showing that the error is

fundamental. As the Supreme Court has put it, “the sole exception to the

                                            4
contemporaneous objection requirement is fundamental error.” Harrell v. State,

894 So. 2d 935, 941 (Fla. 2005).

       A fundamental error is one that “reach[es] down into the validity of the trial

itself to the extent that a verdict of guilty could not have been obtained without the

assistance of the alleged error.” State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991)

(quoting Brown v. State, 124 So. 2d 481 (Fla. 1960)). This standard is “stringent,”

Jackson v. State, 983 So. 2d 562, 565 (Fla. 2008), and the Supreme Court has

“cautioned appellate courts to ‘exercise their discretion concerning fundamental

error “very guardedly.”’” Farina v. State, 937 So. 2d 612, 629 (Fla. 2006) (quoting

Ray v. State, 403 So. 2d 956, 960 (Fla. 1981)). No doubt the fundamental error

standard is difficult to meet, as is its design.

       It seems clear that fundamental error is the “sole exception” to the general

rule that a party must preserve errors to raise them on appeal. But this clarity has

been blurred by the use of a wholly different theory to permit appeals of issues not

raised at trial. Instead of arguing that the unpreserved error was fundamental, more

and more defendants are claiming on appeal that their trial counsel was ineffective

for failing to raise at trial whatever alleged error they wish to raise on appeal and

that this ineffectiveness itself provides a basis for reversal on direct appeal. To the

extent that any such alleged errors are not fundamental, I believe this constitutes an

unwarranted extension of unpreserved errors that may be raised on direct appeal.

                                            5
                         B. Ineffective assistance of counsel

      “[D]efendants facing felony charges are entitled to the effective assistance of

competent counsel.” McMann v. Richardson, 397 U.S. 759, 771 (1970); Amend.

VI; U.S. Const.; Art. I, § 16, Fla. Const. The standards for a claim of ineffective

assistance of counsel are well-known. The defendant must show: (1) that his

counsel’s performance was deficient, meaning that it was unreasonable under

prevailing professional norms; and (2) that the deficiency prejudiced the defense,

meaning that it undermines confidence in the outcome of the trial by creating a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668

(1984). The procedure for raising a claim of ineffective assistance of counsel is

likewise well known: the defendant must make sworn allegations in the trial court

by motion for postconviction relief pursuant to Florida Rules of Criminal

Procedure 3.850 or 3.851. “The trial court is the more appropriate forum to present

such claims where evidence might be necessary to explain why certain actions

were taken or omitted by counsel.” McKinney v. State, 579 So. 2d 80, 82 (Fla.

1991). An appellate court “normally considers the merits of ineffective assistance

of counsel claims after a postconviction motion has been filed under the applicable

rule of criminal procedure and ruled upon by the trial court following the




                                          6
completion of any necessary evidentiary proceedings.” Robards v. State, 112 So.

3d 1256, 1266 (Fla. 2013).

      This procedure makes sense because ineffective assistance of counsel claims

are “generally fact-specific,” Aversano v. State, 966 So. 2d 493, 495 (Fla. 4th DCA

2007), and “both sides are entitled to present relevant evidence to the trial court to

resolve those issues.” Gordon v. State, 469 So. 2d 795, 798 (Fla. 4th DCA 1985)

(Anstead, C.J., concurring specially). Moreover, counsel accused of unprofessional

errors “so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment,” Strickland, 466 U.S. at 687, ought to be

afforded an opportunity to explain their actions, which cannot happen in an

appellate proceeding. See Dennis v. State, 696 So. 2d 1280, 1282 (Fla. 4th DCA

1997) (noting that “[w]hen a motion for post-conviction relief is first raised in the

trial court, trial counsel and the state have a full opportunity to refute the claim that

the representation of a defendant amounted to a constitutional violation”).

       C. Consideration of ineffective assistance of counsel on direct appeal

      The processes set forth above apply the most basic principles relating to

review of criminal convictions: direct appeals are intended to address errors of the

trial court, whereas collateral proceedings are intended to address deficiencies

attributable to other parties in the criminal justice process, such as defense counsel,




                                           7
prosecutors,1 or police. 2 Claims that could have been raised on direct appeal

generally may not be raised in a postconviction motion, see Bundy v. State, 497

So. 2d 1209, 1210 (Fla. 1986), and as stated above, collateral claims generally may

not be raised on direct appeal.

        The concept of “ineffective assistance of counsel on the face of the record”

that could be raised on direct appeal intruded into this straightforward division of

jurisdiction in the 1980s. Previously, the Florida Supreme Court had stated

unconditionally that the issue of adequacy of representation by counsel “cannot

properly be raised for the first time on direct appeal, since . . . it is a matter that has

not previously been ruled upon by the trial Court.” State v. Barber, 301 So. 2d 7, 9

(Fla. 1974) (citation omitted). “[T]he interests of justice do not require review of

counsel’s claimed inadequacy” on direct appeal because “Cr.P.R. 3.850 provides a

means by which this issue may properly be resolved in a correct procedural setting

in the trial court where evidence may be taken . . . .” Id.

        However, in the early 1980s the Florida Supreme Court considered two

direct appeal cases addressing claims that actions of the trial court deprived the

defendant of the effective assistance of counsel. See Foster v. State, 387 So. 2d 344

(Fla. 1980) (reversing conviction on direct appeal where trial court’s action in

making a joint appointment of counsel and allowing the joint representation to

1
    For instance, claims under Giglio v. United States, 405 U.S. 150 (1972).
2
    For instance, claims under Brady v. Maryland, 373 U.S. 83 (1963).
                                           8
continue in spite of actual conflict between codefendants, even where counsel did

not object); Stewart v. State, 420 So. 2d 862, 864 (Fla. 1982) (considering—but

rejecting—claim that the trial court’s failure to grant a continuance denied him the

effective assistance of counsel because “the facts on which this claim is based are

evident on the record before this Court”). The appellants in Foster and Stewart did

not actually seek relief because trial counsel was ineffective; instead, they alleged

errors of the trial court that implicated their right to effective assistance of counsel.

      The district courts, however, read Stewart as establishing a rule that a claim

directly challenging the adequacy of counsel could be raised on direct appeal, as

long as the error was “apparent on the face of the record.” See e.g., Whitaker v.

State, 433 So. 2d 1352, 1353 (Fla. 3d DCA 1983); Gordon, 469 So. 2d at 795;

Antunovich v. State, 491 So. 2d 328, 329 (Fla. 1st DCA 1986). I submit these

cases misread Stewart. Again, the defendant in Stewart did not seek relief because

counsel performed ineffectively; rather, he sought relief because the trial court

denied a continuance, which he claimed deprived him of effective counsel.

Regardless, these cases ended up establishing a new ground for direct appeal as an

“exception” to the rule of State v. Barber that ineffective-assistance claims could

not be raised on direct appeal.

      Perhaps section 924.051, enacted in 1996, was intended to stop the

questionable recognition of this new ground for appellate relief, by prohibiting

                                            9
direct appeals for errors unless they were preserved or fundamental. Following the

enactment of section 924.051, this Court occasionally refused to consider

ineffective-assistance claims on direct appeal because they were inconsistent with

the new statute. See Wingate v. State, 729 So. 2d 492, 493 (Fla. 1st DCA 1999)

(finding an ineffective assistance claim not properly raised on direct appeal in light

of the enactment of section 924.051, Florida Statutes); Seccia v. State, 720 So. 2d

580, 582 (Fla. 1st DCA 1998), rev’d on other grounds, 764 So. 2d 573, 574 (Fla.

2000) (declining to address ineffective assistance of counsel issue “because to do

so would effectively nullify the preservation requirement contained in section

924.051”). But the proscriptions of section 924.051 have slowly disappeared from

the case law in this area, and ineffective assistance of counsel claims on direct

appeal have stormed back. By my reckoning, the frequency of these claims has

picked up considerable speed in the past ten years.

      In summary, I conclude that the practice of permitting claims of ineffective

assistance of counsel on direct appeal stemmed from a misreading of case law, and

is directly contrary to controlling statutory law. If defense counsel did not raise an

issue below, an appellant must demonstrate that the error meets the stringent

fundamental-error standard in order to secure relief on direct appeal. The appellant

should not be permitted to circumvent this standard by claiming that the failure to

raise issues constitutes ineffective assistance, which entails a different standard that

                                          10
could provide an easier path to reversal, and which deprives trial counsel of the

opportunity to defend themselves against allegations of unprofessional conduct.

      I recognize that the Florida Supreme Court, very recently and for the first

time, reversed a conviction on the basis of an unpreserved, non-fundamental error,

finding trial counsel was ineffective for failing to preserve the error. Monroe v.

State, 41 Fla. L. Weekly S192 (Fla. Apr. 28, 2016).3 The Court found that trial

counsel’s failure to move for judgment of acquittal, which resulted in the

defendant’s conviction for a capital felony, was one of the “rare examples” of

ineffective assistance of counsel that should have been remedied on direct appeal.

Id. at S195. Given the statutory proscription against appealing errors that are not

preserved or fundamental, I would limit the holding of Monroe to its facts.

Certainly the alleged instances of ineffective assistance in this case do not come

close to this standard.

      In addressing the use of direct appeal to address a claim of ineffective

assistance of counsel, the Second District noted “[t]here is probably a high

correlation between errors that may be corrected as fundamental error on direct

appeal in the absence of preservation by trial counsel . . . and errors that may be


3
  The fact that the Court found no fundamental error but did find that counsel’s
failure to move for judgment of acquittal constituted ineffective assistance
evidence on the face of the record supports the contention that in some instances,
direct-appeal ineffective assistance employs an easier standard to meet than the
fundamental-error standard.
                                       11
corrected as ineffective assistance of counsel on direct appeal.” Corzo, 806 So. 2d

at 645 n.2. This is undoubtedly true, but the conclusion I draw from it is that these

issues should be raised as fundamental error rather than ineffective assistance of

counsel. At the very least, claims of ineffective assistance of counsel on direct

appeal should hew as closely as possible to the fundamental-error standard, in

order to preserve the statutory scheme for criminal appeals and to ensure fairness

for counsel accused of unprofessional conduct.




                                         12
