Opinion
Case No. 3D03-3239.
Opinion filed March 23, 2005.
An Appeal from the Circuit Court for Miami-Dade County, Maria Espinosa Dennis, Judge, Lower Tribunal No. 99-41887.
Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
Before COPE, CORTIÑAS, and ROTHENBERG, JJ.
The defendant, William A. Dante, appeals from a final judgment of conviction and sentence. We reverse and remand for a new trial.
The defendant was charged with one count of escape, a second degree felony; one count of battery on a law enforcement officer, a third degree felony; and one count of resisting an officer without violence, a first degree misdemeanor. During jury selection, when the prosecutor attempted to use his third peremptory strike, he said, "State would exercise its third and final peremptory on Mr. [Steiger]." Shortly thereafter, when defense counsel sought to use his fourth peremptory challenge on prospective juror Aarestrup, the trial court stated, "Okay, you had your three." Defense counsel then responded, "Then there is nothing to argue about I am sorry." Both sides announced that they accepted the jury, and Aarestrup sat on the jury.
The jury found the defendant guilty of escape and resisting an officer without violence, but not guilty of battery on a law enforcement officer. The defendant's appeal follows.
The defendant seeks a new trial arguing that, pursuant to Florida Rule of Criminal Procedure 3.350(a)(2), he was entitled to six, not three, peremptory challenges. In response, the State concedes that the defendant was entitled to six peremptory challenges, but asserts that this issue was not adequately preserved for appellate review, and therefore, this Court must affirm.
Even though defense counsel did attempt to use a fourth peremptory challenge, the record indicates that he withdrew his request because he mistakenly believed that the defendant was entitled to only three peremptory challenges. Further, defense counsel accepted the jury without renewing any objections. See Joiner v. State, 618 So. 2d 174 (Fla. 1993). Therefore, we agree with the State that this issue was not properly preserved.
The defendant alternatively argues that, even if the issue was not adequately preserved for appellate review, this Court should nonetheless reverse and remand for a new trial because the record clearly indicates that defense counsel was ineffective by not knowing that he was entitled to six peremptory challenges. We agree.
The defendant acknowledges that ineffective assistance of counsel claims are not usually reviewable on direct appeal, but asserts that when a claim of ineffective assistance of trial counsel is apparent on the face of the record, this issue may be reached on direct appeal. In Mizell v. State, 716 So. 2d 829 (Fla. 3d DCA 1998), the State conceded that the trial court committed a sentencing error but argued that the issue was not preserved for appellate review. Rather than affirming the sentence and then requiring the defendant to file an ineffective assistance of counsel claim, this Court remanded for entry of an amended sentence. In doing so, this Court noted that it was applying the "exception to the rule that ineffectiveness claims may not be reached on direct appeal which applies when, as here, `the facts giving rise to such a claim are apparent on the face of the record.'" Mizell, 716 So. 2d at 830 (quoting Gordon v. State, 469 So. 2d 795, 797 (Fla. 4th DCA), review denied, 480 So. 2d 1296 (Fla. 1985)).
In order to establish a claim for ineffective assistance of counsel, the defendant must establish that: "(1) defense counsel's representation was deficient in that it fell below an objective standard of reasonableness and (2) there was prejudice in that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." State v. Bodden, 756 So. 2d 1111, 1113 (Fla. 3d DCA 2000) (citing Strickland v. Washington, 466 U.S. 668, 695 (1984)).
The record clearly demonstrates that defense counsel's decision to abandon his initial request for a fourth peremptory challenge was not a tactical decision, but was based on his mistaken belief that the defendant was entitled to only three peremptory challenges. As such, the defendant has established that defense counsel's performance was deficient. The defendant also demonstrated that he was prejudiced as a result of his defense counsel's deficient performance. Specifically, because defense counsel, based on his mistaken belief, abandoned his initial request to peremptorily challenge juror Aarestrup, this juror sat on the jury which convicted the defendant. See Green v. State, 673 So. 2d 937, 938 (Fla. 1st DCA 1996) (holding that trial court's refusal to allow defendant to use available peremptory challenges constitutes per se reversible error);Telemaque v. State, 591 So. 2d 675 (Fla. 3d DCA 1991) (holding that trial court's improper denial of peremptory challenge constitutes per se reversible error). Therefore, because the facts giving rise to the claim of ineffective assistance of trial counsel are "apparent on the face of the record," we properly address the claim on direct appeal, and conclude that the defendant's conviction must be reversed and the cause remanded for a new trial. Requiring the defendant to bring a subsequent claim for ineffective assistance of trial counsel would be a waste of the parties' and the trial court's time.See Mizell, 716 So. 2d at 830 (noting that appellate courts have a "duty to avoid legal churning").
We are aware of this Court's decisions in Enamorado v. State, 733 So. 2d 1164 (Fla. 3d DCA 1999), Maio v. State, 531 So. 2d 1055 (Fla. 3d DCA 1988), and Verreautt v. State, 411 So. 2d 234 (Fla. 3d DCA 1982), review denied, 418 So. 2d 1281 (Fla. 1982). In these cases, the defendants were allotted less peremptory challenges than they were entitled to, and their convictions were affirmed because the issue was not preserved for appellate review. We conclude that the case under review is distinguishable from these three cases. For example, inVerreautt, the opinion indicates that there was no showing that the defendant attempted to challenge a particular juror, or that the defendant raised a claim for ineffective assistance of trial counsel. In Maio, although factually similar to the case under review, there is no indication that the defendant asserted in his direct appeal a claim for ineffective assistance of counsel. Finally, in Enamorado, although the defendant did raise in his direct appeal a claim for ineffective assistance of trial counsel, the opinion does not demonstrate whether the defendant attempted to challenge a particular juror who ultimately sat on the jury.
Reversed and remanded for a new trial.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.