Roque Gavilla v. State of Florida

District Court of Appeal of Florida

Roque Gavilla v. State of Florida

178 So. 3d 965, 2015 Fla. App. LEXIS 17912, 2015 WL 7571475

CourtDistrict Court of Appeal of Florida

DecidedNovember 25, 2015

Docket4D14-850

StatusPublished

Cited by1 cases

This text of 178 So. 3d 965 (Roque Gavilla 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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Roque Gavilla v. State of Florida, 178 So. 3d 965, 2015 Fla. App. LEXIS 17912, 2015 WL 7571475 (Fla. Ct. App. 2015).

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Opinion

. PER CURIAM.

Roque Gavilla (“appellant”) appeals his conviction and sentence for one count of trafficking in marijuana in an amount exceeding twenty-five pounds. He argues two issues on appeal. First, appellant asserts that his motion for judgment of acquittal should have been granted due to insufficient evidence. Second, he argues that his trial counsel was ineffective for not calling a witness at trial. We affirm on both issues, but write to address the second issue concerning appellant’s ineffective assistance of counsel claim.

Generally, appellate courts do not consider claims of ineffective assistance of counsel on direct appeal. Baker v. State, 937 So.2d 297, 299 (Fla. 4th DCA 2006). Such claims are more appropriately addressed by the trial court during proceedings for post-conviction relief. Id. (citing Jones v. State, 815 So.2d 772, 772 (Fla. 4th DCA 2002)); Bradberry v. State, 922 So.2d 457, 458 (Fla. 4th DCA 2006) (citing Gore v. State, 784 So.2d 418, 438 (Fla.2001)). An exception to that general rule is “ ‘when the error is apparent on the face of the record, which is rarely the case.’ ” Naim v. State, 978 So.2d 268, 269 (Fla. 4th DCA 2008) (quoting Desire v. State, 928 So.2d 1256, 1257 (Fla. 3d DCA 2006)).

Based on the face of this record, we do not find that appellant’s counsel was ineffective for not calling the witness. See Sims v. State, 82 So.3d 825, 825 (Fla. 4th DCA 2011) (affirming conviction on direct appeal because ineffective assistance of counsel claims were “not apparent on the face of the record”).

Accordingly, we affirm on this issue without prejudice so that appellant may raise any claim of ineffective assistance of counsel in subsequent proceedings under Florida Rule of Criminal Procedure 3.850.

Affirmed.

WARNER, LEVINE and KLINGENSMITH, JJ., concur.

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. PER CURIAM.

Roque Gavilla (“appellant”) appeals his conviction and sentence for one count of trafficking in marijuana in an amount exceeding twenty-five pounds. He argues two issues on appeal. First, appellant asserts that his motion for judgment of acquittal should have been granted due to insufficient evidence. Second, he argues that his trial counsel was ineffective for not calling a witness at trial. We affirm on both issues, but write to address the second issue concerning appellant’s ineffective assistance of counsel claim.

Generally, appellate courts do not consider claims of ineffective assistance of counsel on direct appeal. Baker v. State, 937 So.2d 297, 299 (Fla. 4th DCA 2006). Such claims are more appropriately addressed by the trial court during proceedings for post-conviction relief. Id. (citing Jones v. State, 815 So.2d 772, 772 (Fla. 4th DCA 2002)); Bradberry v. State, 922 So.2d 457, 458 (Fla. 4th DCA 2006) (citing Gore v. State, 784 So.2d 418, 438 (Fla.2001)). An exception to that general rule is “ ‘when the error is apparent on the face of the record, which is rarely the case.’ ” Naim v. State, 978 So.2d 268, 269 (Fla. 4th DCA 2008) (quoting Desire v. State, 928 So.2d 1256, 1257 (Fla. 3d DCA 2006)).

Based on the face of this record, we do not find that appellant’s counsel was ineffective for not calling the witness. See Sims v. State, 82 So.3d 825, 825 (Fla. 4th DCA 2011) (affirming conviction on direct appeal because ineffective assistance of counsel claims were “not apparent on the face of the record”).

Accordingly, we affirm on this issue without prejudice so that appellant may raise any claim of ineffective assistance of counsel in subsequent proceedings under Florida Rule of Criminal Procedure 3.850.

Affirmed.

WARNER, LEVINE and KLINGENSMITH, JJ., concur.

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178 So. 3d 965, 2015 Fla. App. LEXIS 17912, 2015 WL 7571475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roque-gavilla-v-state-of-florida-fladistctapp-2015.

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