       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 12, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-2268
                        Lower Tribunal No. 15-855-A-K
                             ________________


                               Steven Watkins,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An appeal conducted pursuant to Anders v. California, 386 U.S. 738 (1967),
from the Circuit Court for Monroe County, Mark H. Jones, Judge.

      Steven Watkins, in proper person.

     Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney
General, for appellee.


Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.

      ROTHENBERG, C.J.
      Steven Watkins appeals the judgment and sentence imposed as a result of

Watkin’s nolo contendere plea to felony petit theft following the trial court’s denial

of his motion to suppress the identification made by the victim of the theft. The

three grounds raised for reversal are that: (1) the trial court failed to determine that

there was a factual basis to support Watkin’s plea to felony petit theft; (2) trial

counsel provided ineffective assistance of counsel by stipulating that there was a

factual basis to support the plea; and (3) trial counsel provided ineffective

assistance of counsel by stipulating, rather than challenging, the propriety of the

enhancement of the petit theft to a felony theft based upon Watkins’ prior petit

theft convictions.1

Although we affirm without prejudice to allow Watkins to seek postconviction

relief under Florida Rule of Criminal Procedure 3.850 for ineffective assistance of




1 Watkins indirectly contests the trial court’s denial of his motion to suppress the
out-of-court photographic lineup identification, but contends that he cannot
properly address that issue on appeal because the photographic lineup was not
included in the record on appeal. However, because Watkins entered into a
negotiated plea to the felony theft; he did not reserve his right to appeal the denial
of his motion to suppress the identification when he entered his plea; and he has
not moved to withdraw his plea, we conclude that the issue of whether the
photographic lineup procedure was so unduly suggestive so as to give rise to a
substantial likelihood of a misidentification has not been preserved for appellate
review on direct appeal. See Camerota v. State, 959 So. 2d 1240, 1242 (Fla. 4th
DCA 2007) (“Generally, to obtain appellate review of a guilty or no contest plea,
the defendant must specifically reserve dispositive issues for appeal in the trial
court.”).

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counsel and/or Florida Rule of Criminal Procedure 3.800 to correct an illegal

sentence, we briefly discuss the three grounds raised on direct appeal.

      As to the first ground—that the trial court erred by failing to determine

whether there was a factual basis to support the plea—we conclude this claim is

without merit both factually and procedurally.       First, the record reflects that

defense counsel stipulated to the existence of a factual basis and specifically

waived on the record any further showing to demonstrate that factual basis.

Second, as the trial court noted on the record, it had just heard the motion to

suppress the out-of-court photograph identification, which included the testimony

of the victim and the police officers, and based on the testimony, the trial court

determined that there was a factual basis to support the plea.

      The Court: Ordinarily the State recites a factual basis. In your case I
      had evidence[,] we heard from the victim here. We heard police
      officers. So I find that there is a factual basis.

      Recognizing that his trial counsel stipulated to the existence of a factual

basis for the plea, Watkins argues in his second ground that this stipulation

constitutes ineffective assistance of counsel. Although a defendant may raise a

claim of ineffective assistance of trial counsel on direct appeal, see Cumper v.

State, 506 So. 2d 89, 89 (Fla. 2d DCA 1987), in order to obtain relief on direct

appeal, he must demonstrate ineffective assistance of counsel which is clear on the

face of the record. Fones v. State, 765 So. 2d 849 (Fla. 4th DCA 2000). Watkins



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has failed to meet that standard here. The victim testified that while seated on the

steps next to Watkins outside a Circle K. Store, Watkins engaged the victim in

“small talk” and then quickly reached into the victim’s pocket and stole his wallet.

Based on the description provided by the victim and video surveillance utilized by

the store, law enforcement issued a BOLO2 describing the suspect and the

suspect’s clothing. Although the physical description provided by the victim was

not entirely accurate (a black male in his mid 30’s, 5'8"- 5'9" with a thin build, and

wearing a tank-top, jeans, a sparkly belt, and a bucket hat), when Watkins was seen

at the same Circle K store hours later, he was wearing the clothing described by the

victim. The victim also positively identified Watkins from a photographic lineup

and testified at the suppression hearing that he had a clear memory of the person’s

face because he got a good look at him.            We, therefore, cannot find clear

ineffective assistance of counsel for stipulating to a factual basis for the plea, and

we additionally conclude that the stipulation was unnecessary based on the trial

court’s own finding, based on the evidence it heard, that there was a factual basis

for the plea.

        Lastly, on the face of the record, we do not find that defense counsel

provided ineffective assistance of counsel by stipulating to the prior convictions for

petit theft relied on by the trial court to enhance the current petit theft conviction to


2   “Be on the look out.”

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a felony theft.   However, this ruling is without prejudice to Watkins to seek

postconviction relief, if appropriate, under rule 3.850 and/or rule 3.800.

      Affirmed.




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