Bryan Gordon v. State of Florida

District Court of Appeal of Florida

Bryan Gordon v. State of Florida

192 So. 3d 579, 2016 WL 2906730, 2016 Fla. App. LEXIS 7645

CourtDistrict Court of Appeal of Florida

DecidedMay 18, 2016

Docket4D12-3128

StatusPublished

This text of 192 So. 3d 579 (Bryan Gordon v. State of Florida) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bryan Gordon v. State of Florida, 192 So. 3d 579, 2016 WL 2906730, 2016 Fla. App. LEXIS 7645 (Fla. Ct. App. 2016).

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Opinion

PER CURIAM.

Bryan Gordon appeals the denial of a rule 3.850 motion following an evidentiary *580 hearing. Gordon’s motion raised five claims. The tidal court granted an eviden-tiary hearing on claims 1 through 4. Following the hearing, the court granted relief on claim 2, ordering resentencing. The court denied claims 1, 3, and 4 and “all other requested relief.” Although the court did not expressly discuss claim 5, we conclude that it was summarily denied, and because the claim was insufficient, we affirm.

In claim 5, appellant alleged his attorneys were ineffective for filing a motion to mitigate his sentence rather than a rule 3.170(l) motion to withdraw his plea. Appellant alleged that he was prejudiced by counsel filing the wrong motion because the issue was not preserved for appeal. Counsel’s failure to preserve an issue for appeal does not show the prejudice necessary to establish an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strobridge v. State, 1 So.3d 1240, 1242 (Fla. 4th DCA 2009). Strickland prejudice focuses on the proceeding being challenged, here the plea proceedings in the trial court. See Strobridge, 1 So.3d at 1242 (discussing Carratelli v. State, 961 So.2d 312 (Fla.2007)). Appellant did not demonstrate through his other claims or any additional allegations that withdrawal of his plea was necessary to correct a manifest injustice and that there was a reasonable probability a rule 3.170(l) motion would have been granted.

We affirm the summary denial of claim 5 and affirm without comment the denial of the other claims.

Affirmed.

GROSS, LEVINE and CONNER, JJ., concur.

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PER CURIAM.

Bryan Gordon appeals the denial of a rule 3.850 motion following an evidentiary *580 hearing. Gordon’s motion raised five claims. The tidal court granted an eviden-tiary hearing on claims 1 through 4. Following the hearing, the court granted relief on claim 2, ordering resentencing. The court denied claims 1, 3, and 4 and “all other requested relief.” Although the court did not expressly discuss claim 5, we conclude that it was summarily denied, and because the claim was insufficient, we affirm.

In claim 5, appellant alleged his attorneys were ineffective for filing a motion to mitigate his sentence rather than a rule 3.170(l) motion to withdraw his plea. Appellant alleged that he was prejudiced by counsel filing the wrong motion because the issue was not preserved for appeal. Counsel’s failure to preserve an issue for appeal does not show the prejudice necessary to establish an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strobridge v. State, 1 So.3d 1240, 1242 (Fla. 4th DCA 2009). Strickland prejudice focuses on the proceeding being challenged, here the plea proceedings in the trial court. See Strobridge, 1 So.3d at 1242 (discussing Carratelli v. State, 961 So.2d 312 (Fla.2007)). Appellant did not demonstrate through his other claims or any additional allegations that withdrawal of his plea was necessary to correct a manifest injustice and that there was a reasonable probability a rule 3.170(l) motion would have been granted.

We affirm the summary denial of claim 5 and affirm without comment the denial of the other claims.

Affirmed.

GROSS, LEVINE and CONNER, JJ., concur.

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192 So. 3d 579, 2016 WL 2906730, 2016 Fla. App. LEXIS 7645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryan-gordon-v-state-of-florida-fladistctapp-2016.

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