Opinion
1D21-3679
09-20-2023
Jason Sapp, Appellant, v. State of Florida, Appellee.
Dane K. Chase of Chase Law Florida, St. Petersburg, for Appellant. Ashley Moody, Attorney General, and Robert Charlie Lee, Assistant Attorney General, Tallahassee, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Escambia County. Linda L. Nobles, Judge.
Dane K. Chase of Chase Law Florida, St. Petersburg, for Appellant.
Ashley Moody, Attorney General, and Robert "Charlie" Lee, Assistant Attorney General, Tallahassee, for Appellee.
WINOKUR, J.
Jason Sapp appeals the denial of three claims he raised in a motion for postconviction relief. We affirm all of the trial court's rulings, but write to address his claim that his trial counsel rendered ineffective assistance by failing to reserve his right to appeal the denial of a motion to suppress.
I
The State charged Sapp with twenty-five counts of possession of child pornography. Sapp filed a motion to suppress several items of evidence, which the court denied. Sapp ultimately entered a "straight-up" plea of no contest to all counts, after which the court entered judgment and sentence. Sapp appealed and his counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting the record disclosed no appealable errors. This Court affirmed without opinion. Sapp v. State, 252 So.3d 1171 (Fla. 1st DCA 2017).
Sapp then filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Among his claims was an allegation that his trial counsel provided constitutionally ineffective assistance by failing to reserve the denial of his motion to suppress, which he claimed was dispositive, for appellate review. The court denied this claim without hearing. The court ruled that the claim was facially insufficient because counsel's failure to "preserve" an issue for appellate review is insufficient to demonstrate prejudice necessary to support an ineffectiveassistance claim.
Even though this claim was denied without a hearing, the special appellate rules applicable to summarily-denied postconviction motions do not apply. See Fla. R. App. P. 9.141(b)(2). This is because the court did grant an evidentiary hearing on another claim not discussed in this opinion. Accordingly, rule 9.141(b)(3) governs this appeal.
We reject the trial court's alternate conclusion that the denial of the motion to suppress was in fact reviewed on appeal.
II
In general, a defendant who enters a no-contest plea may not appeal the judgment without expressly reserving the right to appeal a legally dispositive issue. § 924.051(4), Fla. Stat.; Fla. R. App. P. 9.140(b)(2)(A)(i). Sapp claims that he was prejudiced by counsel's failure to reserve his right to appeal the suppression issue because if counsel had done so, "he would have been entitled to appeal the denial of his motion to suppress and/or would have ultimately won a reversal of the motion, which, in turn, would have resulted in the dismissal of the case against [him]." The State, on the other hand, argues that Sapp's allegation of prejudice was insufficient because he failed to allege that he would not have entered the plea and would have gone to trial if he had known counsel's failure meant that he could not appeal the order denying suppression. The State is correct.
We addressed a similar issue in Mallet v. State, 270 So.3d 1282 (Fla. 1st DCA 2019), which also concerned a claim that counsel rendered ineffective assistance by failing to reserve an issue for appeal following a plea. We recognized in Mallet that Hill v. Lockhart, 474 U.S. 52 (1985), which governs ineffectiveassistance claims that involve a plea, applies to this issue. Mallet, 270 So.3d at 1285. Under Hill, a movant alleging ineffective assistance must demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59.
Here, Sapp never alleged that he would not have pleaded guilty if he had known that he could not appeal the denial of suppression. Similarly, he also did not allege that his plea was involuntary because he was misled into believing that he could appeal the denial of suppression. See, e.g., Hobbs v. State, 790 So.2d 1164, 1166 (Fla. 4th DCA 2001) (finding that a claim of ineffective assistance sufficient where the movant alleged that his lawyer misled him to believe that he could appeal the denial of his motion to suppress notwithstanding his no-contest plea with no reservation of the suppression issue for appeal, and that such misadvice rendered his plea involuntary). Accordingly, the trial court did not err in finding this ground for relief insufficient.
It is unclear whether a mere allegation that counsel's failure to reserve an issue for appeal rendered the plea involuntary, without allegations required by Hill, is sufficient to support an ineffective-assistance claim. We suggested that such an allegation was sufficient in Hawley v. State, 822 So.2d 552 (Fla. 1st DCA 2002). Judge Padovano dissented in Hawley on the ground that the motion did not contain an adequate allegation of prejudice as required by Hill. Hawley, 822 So.2d at 553. Moreover, Mallet requires allegation of prejudice consistent with Hill. Because Sapp alleged neither that the plea was involuntary, nor that he would have gone to trial if counsel had not rendered deficient performance, we need not address this matter here.
Sapp suggests that he needed only to allege that reservation of the right to appeal the suppression issue would have entitled him to appeal that order, which in turn would have resulted in appellate reversal and dismissal of the charges. Not only is this contention contrary to Hill, but it is inconsistent with the ruling in Carratelli v. State, 961 So.2d 312 (Fla. 2007). Carratelli demonstrates why a movant cannot demonstrate that counsel was ineffective for failing to reserve an issue for appeal unless he shows that he would not have entered the plea had he known he could not appeal the suppression issue without that reservation.
Carratelli concerned an ineffective-assistance claim from a movant who had gone to trial, rather than one who had entered a plea, such as here. The movant claimed that counsel was ineffective for "failing to preserve" the denial of challenges at jury selection, arguing that "he was prejudiced because his convictions would have been reversed on appeal." Id. at 316. The supreme court rejected this argument, holding that "a defendant alleging that counsel was ineffective for failing to object or preserve a claim of reversible error in jury selection must demonstrate prejudice at the trial, not on appeal." Id. at 323. In other words, an allegation that counsel failed to preserve an issue is not a legitimate ineffective-assistance claim to the extent that it suggests that preservation would have resulted in reversal on appeal. See Martin-Godinez v. State, 290 So.3d 144, 146 (Fla. 1st DCA 2020) (rejecting the argument that a defendant can "demonstrate prejudice . . . by arguing that if counsel had objected, the defendant would have secured relief on direct appeal"); Strobridge v. State, 1 So.3d 1240, 1242 (Fla. 4th DCA 2009) ("The prejudice in counsel's deficient performance [in failing to preserve error for appeal] is assessed based upon its effect on the results at trial, not on its effect on appeal.").
This contention applies to Sapp's claim. Even if counsel's failure to reserve the suppression issue for appellate review had been deficient, the fact that Sapp may have prevailed on appeal had counsel reserved the issue cannot constitute prejudice. The fact that Sapp's claim arose in the context of a no-contest plea does not alter the applicability of this contention from Carratelli.
Sapp fails to offer any distinction between preserving an objection for appeal (at issue in Carratelli) and reserving an issue for appeal following a guilty or no-contest plea (at issue here) that might produce a conclusion different than the one reached by the court in Carratelli. We do not address this matter further because Sapp has not argued any distinction between them.
Sapp denies that an allegation that he could have prevailed on appeal is insufficient to support an ineffective assistance of trial counsel claim. His argument is based solely on his claim that Merkison v. State, 1 So.3d 279 (Fla. 1st DCA 2009), requires reversal, notwithstanding Carratelli. We disagree. In Merkison we ruled that an ineffective-assistance claim was sufficient because "the outcome of the proceeding may have been different had counsel properly objected and preserved the error for direct appeal." Id. at 281 (emphasis added). While we mentioned that counsel allegedly "failed to preserve" an issue, the point of the decision is that counsel failed to object to improper testimony, which presumably would have prevented admission of prejudicial evidence at trial. This conclusion is consistent with Carratelli. It does not require us to ignore Carratelli and conclude that the possibility of relief on appeal is sufficient for an ineffective-assistance claim after all.
In short, Sapp failed to allege either that he would not have pleaded guilty and would have insisted on going to trial if counsel had not performed deficiently, or that counsel's deficient performance rendered his plea involuntary. Without such an allegation, his ineffective-assistance claim was insufficient, and the court did not err in denying it summarily.
AFFIRMED.
LEWIS and ROBERTS, JJ, concur