Advice to the criminal bar: preparing effectively for allegations of ineffectiveness.

• Author: Black, Anthony K.

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...