Roque Gavilla v. State of Florida , 178 So. 3d 965 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ROQUE GAVILLA,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D14-850
[November 25, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen Miller, Judge; L.T. Case No. 2011CF009077
AXXXXMB.
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.
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.
* * *
Not final until disposition of timely filed motion for rehearing.
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