ELMORE v. STATE

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Clifford Levon ELMORE, Appellant, v. STATE of Florida, Appellee.

No. 1D14–2856.

Decided: May 28, 2015

Diana L. Johnson of Johnson and Lufrano, P.A., Jacksonville, Appellant. Pamela Jo Bondi, Attorney General, and David Campbell, Assistant Attorney General, Tallahassee, for Appellee.

Appellant, Clifford Levon Elmore, challenges his status as a prison releasee re-offender (PRR) for his conviction of battery on a law enforcement officer. Because Appellant failed to properly preserve this issue, we affirm without prejudice for Appellant to file a proper motion for post-conviction relief or a petition alleging ineffective assistance of appellate counsel.

Appellant was convicted of battery on a law enforcement officer and resisting an officer with violence. Without objection, the trial court sentenced Appellant as a PRR on the charge of battery on a law enforcement officer. It is undisputed that battery on a law enforcement officer is neither a qualifying nor an enumerated offense under the PRR statute. State v. Hearns, 961 So.2d 211, 212 (Fla.2007); Walker v. State, 965 So.2d 1281, 1283 (Fla. 2d DCA 2007). Moreover, the erroneous imposition of PRR status renders a sentence illegal. Kirkland v. State, 71 So.3d 254, 255 (Fla. 2d DCA 2011).

In order to raise a claim of sentencing error on direct appeal, a defendant must either contemporaneously object to the sentencing error or file a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Jackson v. State, 983 So.2d 562, 569 (Fla.2008). Appellant failed to follow either of these procedures; thus, this Court cannot address his claim of an illegal sentence on direct appeal. Austin v. State, 158 So.3d 648, 651–52 (Fla. 1st DCA 2014) (declining to review an unpreserved claim of illegal sentence on direct appeal), review granted 2015 WL 795801 (Fla. Feb. 13, 2015); Sanders–Bashui v. State, 124 So.3d 1041, 1042 (Fla. 3d DCA 2013) (declining to review on direct appeal a claim of illegal sentence where the issue was neither preserved by a contemporaneous objection nor a rule 3.800(b)(2) motion); Daniels v. State, 118 So.3d 996, 997 (Fla. 1st DCA 2013) (declining to review an unpreserved sentencing error on direct appeal).

Appellant urges this Court to reach this issue by finding that defense counsel was ineffective for failing to object to the imposition of a PRR sentence on the charge of battery on a law enforcement officer. As a general rule, claims asserting ineffective assistance of counsel are not cognizable on direct appeal. Fox v. State, 104 So.3d 371, 372 (Fla. 1st DCA 2012). A limited exception has been carved out for those cases where “it is obvious from the record that counsel was ineffective, ‘the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.’ “ Id. (quoting Dailey v. State, 46 So.3d 647, 647 (Fla. 1st DCA 2010)). Arguably, this case could fall under the exception to general rule because, in the post-conviction context, it is well-established that the failure to object to an illegal sentence constitutes ineffective assistance of counsel. See, e.g., Hernandez v. State, 30 So.3d 610, 613 (Fla. 3d DCA 2010); Rudolph v. State, 968 So.2d 633, 633 (Fla. 2d DCA 2007); Penn v. State, 941 So.2d 466, 466 (Fla. 1st DCA 2006). However, recognizing ineffective assistance of counsel on the face of the record in these circumstances would eviscerate the holding in Jackson, which requires preservation even of fundamental errors.

Contrary to the dissent's argument, we are not holding that ineffective assistance of counsel claims must be preserved. Instead, we are recognizing that appellate courts always have been cautious about addressing claims of ineffective assistance of counsel on direct appeal. Bracey v. State, 109 So.3d 311, 315 (Fla. 2d DCA 2013) (acknowledging that claims of ineffective assistance of counsel are rarely addressed on direct appeal); Henley v. State, 719 So.2d 990, 990 (Fla. 4th DCA 1998) (explaining that “[i]nstances where the appellate court will address an ineffectiveness claim on the face of an appellate record are rare indeed.”). Here, Appellant is attempting to circumvent Jackson's holding that even fundamental sentencing errors must be preserved before an appellate court may consider them on direct appeal. 983 So.2d at 570. Because Appellant's unpreserved claim of an illegal sentence would not be correctable as fundamental error on direct appeal, it follows that it does not fall into the limited category of errors that are correctable as ineffective assistance of counsel on direct appeal. See Corzo v. State, 806 So.2d 642, 645 n. 2 (Fla. 2d DCA 2002) (noting that there is probably a high correlation between errors that may be corrected as fundamental errors on direct appeal in the absence of preservation and errors that may be corrected as ineffective assistance of counsel on direct appeal).

We, therefore, AFFIRM Appellant's convictions and sentences without prejudice for Appellant to file a proper motion for post-conviction relief or a petition alleging ineffective assistance of appellate counsel.

Plain and simple: it is ineffective assistance of counsel to fail to object to an illegal sentence. This is the only statement of law necessary to this case. And most importantly, the majority agrees with this statement in its entirety. Because it is legion failing to object to an illegal sentence is ineffective assistance of counsel,1 no further considerations remain. Mr. Elmore's sentence should be reversed because his counsel was—undeniably and incontestably—ineffective.

The majority uses preservation principles from a wholly different context to deny Mr. Elmore what is patently clear—even to the majority: his counsel should have objected to his sentence, and his counsel was constitutionally deficient for his failure to do so. There is no authority for the proposition that an ineffective assistance of counsel claim must be preserved. Yet this is what the majority demands. For authority, the majority cites this Court's decision in Austin v. State, 158 So.3d 648, 651–52 (Fla. 1st DCA 2014).

Austin had nothing to do with ineffective assistance of counsel. Austin merely stands for the unremarkable, well-known proposition that sentencing errors must be preserved by Rule 3.800(b) motion. Period. Nothing more. No rule or case suggests that a claim of ineffective assistance of counsel must be preserved. This is a direct appeal alleging ineffective assistance of counsel; Austin was a direct appeal alleging a sentencing error. The two are governed by different standards.

The Florida Supreme Court, and this Court, have been clear: sentencing errors must be preserved. Jackson v. State, 983 So.2d 562 (Fla.2008); Gore v. State, 964 So.2d 1257, 1276 (Fla.2007) (a claim that a sentence is unconstitutionally cruel and unusual under the Eighth Amendment must be preserved). But this was not a sentencing error, this was ineffective counsel. The majority cites no authority for its conflation of the two distinct claims or its conclusion ineffective assistance of counsel claims must be preserved.2

Not to mention, our sister court has reversed an illegal sentence, where the claim was actually the illegality of the sentence, despite the failure to preserve such a claim. Lightsey v. State, 112 So.3d 616, 616–17 (Fla. 3d DCA 2013). The Third District recognized that even though the claim was actually an illegal sentence claim and therefore unpreserved, the illegality was “clear and defense counsel's failure to properly preserve the argument clearly constitutes ineffective assistance of counsel.” Id. at 617–18. The court, to “put an end to the appellate wheel spinning,” reversed the patently illegal sentence and remanded for the court to impose a legal sentence. Id. at 618.

Here, the majority opinion takes a concededly ineffective counsel and uses an inapplicable standard to demand Mr. Elmore preserve an ineffective assistance claim. While the majority placates Mr. Elmore by suggesting he file 3.850 motions or ineffective assistance of appellate counsel claims, it fails to sufficiently state why his present ineffective assistance of counsel appeal must fail. Just because he could use other avenues does not mean he cannot pursue this avenue.

This Court need not continue this appellate wheel spinning. Because there is no support for the majority's holding that ineffective assistance of counsel claims must be preserved, I dissent.

FOOTNOTES

1.  While the majority relies on “caution” in the “rare” use of ineffective assistance of counsel on direct appeal, its reliance is misplaced. Never has this Court, or any other, found failing to object to an illegal sentence effective assistance. Instead, the cases are legion, and the majority agrees, it is ineffective assistance to fail to object. Always. The majority cites nothing to the contrary. So as here, where the law clearly and beyond per adventure circumscribes an action and the record unquestionably shows counsel took that action, “caution” and “rarity” are simply not issues.

2.  Taken to its end, this presents a dangerous, slippery slope where every ineffective assistance of counsel claim is subject to the preservation requirement of contemporaneous objection. It would be fantastical to suggest the ineffective counsel or the defendant himself would have to object at trial to the very thing it then claims counsel was ineffective for doing or not doing. Ineffective assistance claims would become meaningless. We now start down that path.

PER CURIAM.

ROBERTS and ROWE, JJ., concur. CLARK, J. dissents with opinion.