Summary
concluding that ineffectiveness of the appellant's counsel was not established on the face of the record and affirming the appellant's conviction and sentence without prejudice to the appellant raising his claim of ineffectiveness pursuant to rule 3.850
Summary of this case from Mathis v. StateOpinion
No. 4D14–850.
11-25-2015
Roque GAVILLA, Appellant, v. STATE of Florida, Appellee.
W. Grey Tesh, West Palm Beach, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
W. Grey Tesh, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
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.’ ” Nairn 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.