Terry v. State

District Court of Appeal of Florida

Terry v. State

894 So. 2d 1086, 2005 Fla. App. LEXIS 2920, 2005 WL 525549

CourtDistrict Court of Appeal of Florida

DecidedMarch 8, 2005

DocketNo. 1D04-1436

StatusPublished

This text of 894 So. 2d 1086 (Terry v. State) 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.

Bluebook

Terry v. State, 894 So. 2d 1086, 2005 Fla. App. LEXIS 2920, 2005 WL 525549 (Fla. Ct. App. 2005).

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Opinion

PER CURIAM.

The appellant appeals the denial of his rule 3.850 motion following an evidentiary hearing. As his third and fourth grounds for relief, the appellant asserted ineffective assistance of counsel claims for trial counsel’s failure to preserve certain issues for appellate review. The trial court denied the claims on the basis that the claims were not cognizable in a rule 3.850 motion because they could have been raised on direct appeal. The appellant contends that the trial court erred in denying the claims on that basis. We agree.

Ineffective assistance of counsel claims, including those alleging that counsel failed to properly preserve an issue for appellate review, are cognizable in a rule 3.850 motion, as they generally cannot be raised for the first time on direct appeal. See Johnson v. State, 888 So.2d 122, 125 (Fla. 4th DCA 2004); Chambers v. State, 530 So.2d 452, 453 (Fla. 1st DCA 1988). Therefore, we reverse the trial court’s denial of grounds three and four and remand for the trial court to rule on the merits of these claims. We otherwise affirm the trial court’s order.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

WOLF, C.J., DAVIS and BROWNING, JJ., concur.

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PER CURIAM.

The appellant appeals the denial of his rule 3.850 motion following an evidentiary hearing. As his third and fourth grounds for relief, the appellant asserted ineffective assistance of counsel claims for trial counsel’s failure to preserve certain issues for appellate review. The trial court denied the claims on the basis that the claims were not cognizable in a rule 3.850 motion because they could have been raised on direct appeal. The appellant contends that the trial court erred in denying the claims on that basis. We agree.

Ineffective assistance of counsel claims, including those alleging that counsel failed to properly preserve an issue for appellate review, are cognizable in a rule 3.850 motion, as they generally cannot be raised for the first time on direct appeal. See Johnson v. State, 888 So.2d 122, 125 (Fla. 4th DCA 2004); Chambers v. State, 530 So.2d 452, 453 (Fla. 1st DCA 1988). Therefore, we reverse the trial court’s denial of grounds three and four and remand for the trial court to rule on the merits of these claims. We otherwise affirm the trial court’s order.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

WOLF, C.J., DAVIS and BROWNING, JJ., concur.

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Bluebook (online)

894 So. 2d 1086, 2005 Fla. App. LEXIS 2920, 2005 WL 525549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terry-v-state-fladistctapp-2005.

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