Ineffective Assistance of Counsel

A person who has been tried and found guilty or who entered a plea has an opportunity to challenge the judgment and sentence and obtain post-conviction relief under Florida Rule of Criminal Procedure 3.850. Most of these claims involve an allegation of ineffective assistance of counsel.

A defendant must file a petition or motion for post-conviction relief within two years after the judgment becomes final on appeal. With limited exceptions, the court is not generally allowed to consider a motion for post-conviction relief filed beyond the two-year time period. 

To prevail on a motion based on ineffective assistance of counsel, the defendant must prove that the attorney failed to render effective assistance, and that had effective assistance been offered, the outcome may have been different. The most common examples of ineffective assistance of counsel claims in Florida include:

  • the failure to convey a plea offer;
  • the failure to investigate exculpatory evidence or favorable witnesses;
  • the failure to assert affirmative defenses;
  • the failure to file viable pretrial motions;
  • the failure to advise a defendant of the consequences of a plea including the fact that the plea could subject him to deportation if the defendant is not a U.S. citizen; and
  • the failure to preserve the right to appeal.

Attorney for Claims of Ineffective Assistance of Counsel in Florida

If you were convicted of a crime and believe that you are entitled to relief because of ineffective assistance of counsel at trial or during the plea, then contact an experienced criminal defense attorney at Pumphrey Law.

With offices in Tallahassee, FL, our attorneys represent clients on a direct appeal and also during post-conviction motions. Call (850) 681-7777 today to discuss your case. 


Two Prong Test for Claims of Ineffective Assistance of Counsel 

Following the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), courts in Florida have explained that the following two factors must be established in order to prevail on ineffective assistance of counsel claims:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards.

Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Bolin v. State, 41 So.3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986)).


Standard of Review under the Strickland Test

Because both prongs of the Strickland test present mixed questions of law and fact, the courts in Florida employ a mixed standard of review, deferring to the circuit court's factual findings that are supported by competent, substantial evidence, but reviewing the circuit court's legal conclusions de novo. Shellito v. State, 121 So.3d 445, 451 (Fla. 2013).


Ineffective Assistance of Counsel Claims after a Plea

When the defendant enters a plea of guilty or nolo contendere, rather than going to trial, the two-part test above still applies. The prejudice prong, however, “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

“[I]n order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.  In determining whether a reasonable probability exists that the defendant would have insisted on going to trial, the court will consider the totality of the circumstances surrounding the plea, including such factors as whether:

  • a particular defense was likely to succeed at trial;
  • the colloquy between the defendant and the trial court at the time of the plea; and
  • the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial.

Presumptions that Trial Counsel's Performance was not Deficient

Under Florida law, the court have found a strong presumption that trial counsel's performance was not deficient. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689, 104 S.Ct. 2052.

The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)).

“Judicial scrutiny of counsel's performance must be highly deferential.” Id. In demonstrating prejudice, the defendant must show a reasonable probability that “but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.


Being Entitled to an Evidentiary Hearing

“To be entitled to an evidentiary hearing on a claim of ineffective assistance, the defendant must allege specific facts that are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant.” Rhodes v. State, 986 So.2d 501, 513–14 (Fla. 2008) (quoting Jones v. State, 845 So.2d 55, 65 (Fla. 2003)).

Mere conclusory allegations are insufficient to warrant an evidentiary hearing. The defendant bears the burden of “establishing a ‘prima facie case based on a legally valid claim.’ ” Barnes v. State, 124 So.3d 904, 911 (Fla. 2013) (quoting Valentine v. State, 98 So.3d 44, 54 (Fla. 2012)).

The burden is also “on the defendant, not the State, to show a ‘reasonable probability’ that the result would have been different” but for counsel's error. Crain v. State, 78 So.3d 1025, 1034 (Fla. 2011) (quoting Wong v. Belmontes, 558 U.S. 15, 27, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009)). Summary denial is proper where the defendant fails to sufficiently allege both prongs of the Strickland standard. Rhodes, 986 So.2d at 514.

Trial counsel is not required to obtain the defendant's consent to “every tactical decision.” Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). For example, in Taylor v. Illinois, 484 U.S. 400, 417–18, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), the court found that an attorney has authority to manage most aspects of the defense without obtaining his client's approval.


Time Limits for Ineffective Assistance of Counsel Claims

Florida Rule of Appellate Procedure 9.141(d)(5) states that “[a] petition alleging ineffective assistance of appellate counsel on direct review shall not be filed more than 2 years after the judgment and sentence become final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the result of the appeal by counsel.”

Rule 9.141(d)(5) also provides that “[i]n no case shall a petition alleging ineffective assistance of appellate counsel on direct review be filed more than 4 years after the judgment and sentence become final on direct review."


Additional Resources

Preparing Effectively for Allegations of Ineffectiveness - This scholarly article was published in May of 2008 in Volume 82, No. 5, of the Florida Bar Journal. The article was written by Judge Anthony K. Black and Susan S. Matthey. The article explains recent changes to the law that allow the court to summarily deny facially-insufficient allegations of ineffective assistance of a criminal defense attorney at or before trial. The article also discusses when a court can properly deny a motion for post-conviction relief when the defendant, as part of a plea agreement, waived his right to such a motion.


This article was last updated on Friday, March 25, 2017.