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Ineffective Assistance of Counsel

Under the Florida Rules of Criminal Procedure, a person who has been convicted at trial, or who has entered a guilty plea, can thereafter file a motion with the court asking that his sentence be vacated, set aside, or corrected. (See Florida Rule of Criminal Procedure 3.850.)  Frequently, these requests argue that the defendant’s conviction resulted from the ineffective assistance of counsel.  Ineffective assistance of counsel can also provide a basis for a post-conviction appeal.  But what exactly does that mean?

Demonstrating ineffective assistance of counsel

According to the U.S. Supreme Court in Strickland v. Washington, the Constitution’s guarantee of a right to counsel in criminal proceedings presupposes that any such counsel must be effective – that is, must help ensure that the defendant’s trial is fair and produces a just result.  The Court in Strickland established a two-part test that must be satisfied to show that counsel’s assistance was ineffective.  To meet this test, the defendant must show that:

  1. His lawyer’s performance was deficient, and contained errors so serious that the lawyer did not provide adequate counsel as envisioned by the Constitution; and
  2. The lawyer’s performance prejudiced the defense.

The Court explained that the test for whether the defense was prejudiced is whether there is a reasonable probability that, but for counsel’s unprofessional mistakes, the trial’s result would have been different.  If the defendant pled guilty instead of proceeding to trial, the test for prejudice is whether, but for counsel’s errors, the defendant would have rejected the plea and gone to trial instead.

Examples of ineffective assistance of counsel

The following mistakes and failures of trial counsel can constitute ineffective assistance:

  • Failure to file appropriate pretrial motions;
  • Failure to convey or fully explain the consequences of a plea offer;
  • Failure to investigate evidence or witnesses that might be exculpatory;
  • Failure to preserve the right to appeal;
  • Failure to attempt to exclude prejudicial evidence;
  • Failure to file a motion for new trial, particularly where the prosecution’s case was weak and there was a reasonable probability that the motion would be granted;
  • Failure to move to strike a witness’s testimony when the witness refuses to be cross-examined; and
  • Failure to warn a defendant that a guilty plea could result in deportation if defendant is not a U.S. citizen.

On the other hand, the following actions have been ruled not to constitute ineffective assistance:

  • Failure to call a witness to testify when defense counsel knew of the witness’s testimony and made a strategic decision not to call him;
  • Failure to interview witnesses listed on an alibi notice when the witnesses were not available to testify; and
  • Failure to present a defense that defendant was intoxicated, which would have been inconsistent with defendant’s defense that he did not commit the murder in question.

Consult a Miami appellate lawyer

If you have been convicted at trial or pled guilty to a crime, it is not too late to seek help from an experienced appellate lawyer.  The Miami and Orlando appeals lawyers of The Baez Law Firm have handled appeals in both Florida and federal courts, and will fight to win your appeal no matter what went wrong at your trial.  Contact The Baez Law Firm for a consultation about your case today.

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