The Florida Bar
www.floridabar.org
The Florida Bar Journal
May, 2008 Volume 82, No. 5
Advice to the Criminal Bar: Preparing Effectively for Allegations of Ineffectiveness

by Judge Anthony K. Black and Susan S. Matthey

Page 49

Florida Rule of Criminal Procedure 3.850 affords a person who has been tried and found guilty or who pleaded guilty or nolo contendere an opportunity to challenge his or her judgment and sentence and obtain post-conviction relief.1 The 13th Circuit is the only circuit in Florida to have a criminal division devoted entirely to the handling of Rule 3.850 motions. At its inception in April 2006, the 3.850 division inherited a backlog of motions from nearly 400 defendants. By the close of 2007, approximately 800 more defendants had filed motions. Statewide, the number of these motions is staggering, and, more often than not, such motions raise allegations of ineffective assistance of counsel.

As the judge who presides over this division and hears myriad claims of what counsel did or did not do, I can offer you this: Don’t take it personally. Consider the possibility of being the subject of such a motion to be a cost of doing business. Like paying your office lease or purchasing pens, being the subject of a 3.850 motion is almost inevitable at some point in your career. As such, I offer you a basic understanding of Rule 3.850 motions, along with some suggestions on how to prepare for their common allegations, thereby limiting your exposure to a finding of ineffectiveness.

Putting it in Perspective
The finding of ineffective assistance of counsel following a conviction at trial turns on a showing of two components. “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.”2 The test for prejudice is “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome [of the trial].”3

When the defendant enters a guilty or nolo contendere plea, rather than proceeding to trial, the two-part test above still applies; however, the prejudice prong “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.”4 Specifically, “in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”5

In determining whether a reasonable probability exists that the defendant would have insisted on going to trial, a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial.6

Putting Limitations on Filings
Until recently, a facially-insufficient allegation of ineffective assistance of counsel could be, with some exceptions, summarily denied.7 However, in Spera v. State, 971 So. 2d 754 (Fla. 2007), the Florida Supreme Court held that all facially insufficient allegations shall be dismissed with leave to amend within a reasonable period of time.8 To be sure, this holding will substantially increase the number of 3.850 filings (and refilings). For example, a defendant’s general and conclusory allegations — which used to warrant summary denial — now warrant dismissal without prejudice, and an opportunity to correct. Interestingly, though, while Spera broadens a defendant’s ability to file 3.850 motions, at the same time, the Second District Court of Appeal has also approved one method of limiting a defendant’s ability to do the same.

In Stahl v. State, 972 So. 2d 1013 (Fla. 2d DCA 2008), the Second District found that a court may properly deny a motion for post-conviction relief filed by a defendant who, as part of a plea agreement, waived his or her right to file such a motion.9 Essentially, Stahl holds that it may be permissible for the state to ask for a waiver of a defendant’s right to file future 3.850 motions as part of a plea agreement. This method of limiting a defendant’s ability to file post-conviction motions, however, is in and of itself limited. First, such a waiver does not prohibit the filing of legitimate allegations of, among other things, “ineffective assistance of counsel claims attacking the advice received from counsel in entering into the plea and waiver.”10 Second, this case does not contemplate the possible conflict of interest that may arise if the defense counsel advocates a waiver of the defendant’s ability to allege that same counsel’s ineffectiveness. What Stahl does suggest, however, is that courts may be increasingly willing to curtail a defendant’s nearly limitless ability to file 3.850 motions.11

Putting it on the Record
Despite Spera and the sheer volume of motions filed, the court may summarily deny an allegation of ineffective assistance of counsel without an evidentiary hearing. To do so, the allegation must be conclusively refuted from the record or must be such that the defendant cannot demonstrate prejudice as a result of counsel’s performance.12 For example, a defendant will not warrant relief on an allegation of ineffectiveness where the record reflects that counsel did the very thing defendant contends counsel did not do. Likewise, a defendant cannot warrant relief on an allegation of ineffective assistance of counsel for failure to preserve matters for appeal because a defendant cannot demonstrate prejudice at the trial level on such an allegation.13

Although a defendant’s statement on the record of satisfaction with counsel’s representation is insufficient to conclusively refute an allegation of ineffective assistance of counsel,14 the inclusion on the record of other pertinent information will better allow the court to summarily deny certain allegations of ineffectiveness. For example, if the record reflects when plea offers are conveyed and rejected, such will allow for a summary denial of allegations of ineffective assistance of counsel for failure to convey a plea offer. Similarly, where the record reflects the maximum sentence a defendant faces, certain allegations of ineffective assistance of counsel based on misadvice may be summarily denied.15 I submit to you: Before a defendant enters a plea, ask the trial court to inquire of the defendant whether there were any witnesses to be interviewed, defenses to be investigated, or motions to be filed prior to the entry of a plea. Doing so not only will strengthen the trial court’s ability to find the plea knowingly and voluntarily entered, but also it will allow for the summary denial of allegations of ineffective assistance of counsel for failure to file motions or investigate witnesses and defenses — interestingly, the most common allegations of ineffective assistance of counsel.

Putting it in Your File
If a 3.850 allegation withstands summary denial, the court will grant the defendant an evidentiary hearing.16 At the hearing, the burden remains on the defendant to prove a claim of ineffective assistance of counsel.17 “However, when a defendant presents competent substantial evidence in support of his ineffective assistance claim, the burden shifts to the [s]tate to present contradictory evidence.”18 The evidentiary hearing presents an interesting dynamic once this burden shifts and the state calls as its witness its former foe — the defense attorney from the original proceeding — to present contradictory evidence to refute the defendant’s allegations.

I again emphasize: Do not take this personally. After presiding over countless hearings, I assure you that you do yourself no service by taking offense to the allegation. Those attorneys who offer only anger at the very thought of being called deficient in no way assist the court in determining the merits of the ineffective assistance of counsel claim. However, while you should not take these matters personally, you should take them seriously. Your best course of action prior to testifying at a 3.850 evidentiary hearing is to be prepared and review your file.

Even better still — and in line with the above discussion of putting pertinent information on the record — be sure to keep a well-documented file. Where an attorney’s file references that a certain witness was contacted and that the witness, for example, would not have been helpful, an allegation of ineffective assistance of counsel for failure to call that witness fails. By that same token, where the attorney is cavalier in his or her testimony, cannot recall contacting the possible witness, and cannot reference any notes indicating that he or she did, the possible “ineffective” label becomes slightly easier for the court to consider. In fact, I submit to you to keep an exhaustive list in your file of all witnesses your client requested for investigation. Doing so will support the denial of an allegation of ineffective assistance of counsel for failure to call a witness not on the list, as an attorney cannot be deemed deficient for failing to investigate a witness of whom the attorney was unaware.19 Similarly, where an attorney’s file references investigation of a particular motion but found no basis upon which to file it, an allegation of ineffective assistance of counsel for failure to file that motion will fail.20

Not to Put Too Fine a Point on it
As a criminal defense attorney, be warned that motions for post-conviction relief alleging your ineffectiveness are nearly inevitable. Although the numbers of these motions filed may be curtailed by plea agreements that include a waiver of the right to file these motions, there are steps you can take to limit your exposure to such allegations. Be sure to document information, both on the record in court and off the record in your file. Although inclusion of certain information on the record and in your files may seem time consuming, cumbersome, and perhaps idealistic, doing so will only help in combating future allegations of ineffective assistance of counsel, and rendering you a more effective attorney.

1 See Fla. R. Crim. P. 3.850.

2 Strickland v. Washington, 466 U.S. 668, 686-687 (1984).

3 Id. at 694.

4 Hill v. Lockhart, 474 U.S. 52, 59 (1985).

5 Id.

6 See Grosvenor v. State, 874 So. 2d 1176, 1181-1182 (Fla. 2004).

7 See, e.g., Wright v. State, 646 So. 2d 811, 813 (Fla. 1st D.C.A. 1994) (holding that, “[w]here allegations of ineffective assistance of counsel are too general and made without reference to the underlying facts of the case, the motion is facially insufficient and properly denied.”); but see Nelson v. State, 875 So. 2d 579, 583 (Fla. 2004) (explaining that, where allegations of ineffective assistance of counsel for failure to call a witness fail to allege that the witness would have been able to testify at trial, the allegation is facially insufficient and shall be dismissed without prejudice for the defendant to refile a facially sufficient allegation within a set period of time).

8 See Spera v. State, 971 So. 2d 754 (Fla. 2007) (explaining that a 30-day leave period is a reasonable period within which to amend a facially insufficient motion). Following such a dismissal, should the defendant fail to refile the allegation within the specified period of time, the court may deny the allegation with prejudice. See id. (citing Nelson v. State, 875 So. 2d 579, 584 (Fla. 2004)).

9 See Stahl v. State, 972 So. 2d 1013 (Fla. 2d D.C.A. 2008).

10 See id.

11 Most notably, there exists a two-year time limit from the date the judgment and sentence becomes final for the filing of 3.850 motions. See Fla. R. Crim P. 3.850(b).

12 See Anderson v. State, 627 So. 2d 1170 (Fla. 1993); see also Strickland v. Washington, 466 U.S. 668, 686-687 (1984).

13 In allegations of ineffective assistance of counsel for failure to preserve matters for appeal, a defendant will be able to allege prejudice at the appellate level only. However, because the prejudice required is that, but for counsel’s deficiency, the outcome of the trial — not the appeal — would have been different, a defendant raising this allegation can never demonstrate prejudice and, thus, cannot warrant post-conviction relief. See Carratelli v. State, 961 So. 2d 312, 327 (Fla. 2007).

14 See Jones v. State, 846 So. 2d 1224 (Fla. 2d D.C.A. 2003); see also Rivera v. State, 746 So. 2d 542 (Fla. 2d D.C.A. 1999) (explaining that, when a defendant alleges that he or she entered a plea involuntarily, neither affirmative answers regarding voluntariness during the plea colloquy nor the existence of a signed, written plea agreement is sufficient to conclusively refute the allegation).

15 See Scheele v. State, 953 So. 2d 782 (Fla. 4th D.C.A. 2007); see also State v. Leroux, 689 So. 2d 235 (Fla. 1996) (explaining that, where the record reflects that a defendant was informed specifically of the amount of time he faced by entering a plea, that defendant cannot reasonably rely on counsel’s alleged advice that he faced a lesser sentence).

16 Note, though, the state will first be given an opportunity to file a response to the allegations.

17 See Williams v. State, 32 Fla. L. Weekly D476 (Fla. 2d D.C.A. 2007).

18 Id.

19 See Cox v. State, 966 So. 2d 337, 363 (Fla. 2007) (quoting Sims v. Singletary, 155 F.3d 1297, 1316 (11th Cir.1998)).

20 See Harrison v. State, 562 So. 2d 827, 827-828 (Fla. 2d D.C.A. 1990) (explaining that a defendant may prevail on a claim of ineffective assistance of counsel for failure to file a motion to suppress where the defendant demonstrates that counsel knew a valid basis existed to suppress the evidence, and yet failed to act accordingly).


Judge Anthony K. Black received his B.S., magna cum laude, from Arizona State University in 1978, and J.D. from the University of Illinois College of Law in 1983. He practiced law from 1983 to 2002, and was board certified in civil trial. In May 2002, he was appointed to the 13th Judicial Circuit.

Susan S. Matthey received her B.A. from Sewanee, the University of the South; M.B.A. from Stetson University; and J.D. from Stetson University College of Law. A former editor for Stetson Law Review, she is now a senior staff attorney with the 13th Judicial Circuit, and has worked in the 3.850 division with Judge Anthony K. Black since its inception.

This column is submitted on behalf of the Criminal Law Section, Ann E. Finnell, chair, and Georgina Jimenez-Orosa.

[Revised: 02-10-2012]