Opinion
No. 4D99-2505.
Opinion filed January 31, 2001.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Royce Agner, Judge; L.T. Case No. 97-1342 CF10A.
Al Legett Burgess, Milton, pro se, Carey Haughwout, Public Defender, and David J. McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
ON MOTION FOR CLARIFICATION
On appellant's motion for clarification, we address our reasoning for affirming the point on appeal regarding appellant's ineffective assistance of counsel claim. Generally, such claims are not reviewable on direct appeal, but are more properly raised in a motion for postconviction relief. See McKinney v. State, 579 So.2d 80, 82 (Fla. 1991). However, an exception to this rule exists where the deficient performance of counsel and the prejudice to the defendant are apparent on the face of the record. Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla. 1987). Here, Burgess argues that his attorney should have moved to suppress the victim's identification of him at a live post-information, pre-trial lineup because he did not have counsel present. Our review of the record, however, does not clearly show that Burgess was unrepresented by counsel at the lineup. Because the validity of Burgess' claim is not apparent from the face of the record, we do not address it.
A post-information lineup without counsel is unconstitutional. United States v. Wade, 388 U.S. 218, 236-37 (1967).
GUNTHER, POLEN, JJ., and DONNER, STEELE, Associate Judge, Concur.