Henry Martin Steiger v. State of Florida

        Supreme Court of Florida
                             ____________

                           No. SC20-1404
                            ____________

                    HENRY MARTIN STEIGER,
                          Petitioner,

                                 vs.

                       STATE OF FLORIDA,
                          Respondent.

                         November 10, 2021

LAWSON, J.

     We accepted review of the First District Court of Appeal’s

decision in Steiger v. State, 301 So. 3d 485 (Fla. 1st DCA 2020),

because it expressly and directly conflicts with decisions of the

Second and Fourth District Courts of Appeal in Howard v. State,

288 So. 3d 1239 (Fla. 2d DCA 2020), and Kruse v. State, 222 So. 3d

13 (Fla. 4th DCA 2017), concerning whether appellate courts may

address the merits of unpreserved claims of ineffective assistance of

trial counsel on direct appeal. We have jurisdiction. See art. V, §

3(b)(3), Fla. Const. For the reasons explained below, we hold that
section 924.051(3), Florida Statutes (2020), which prohibits raising

an unpreserved claim of error on direct appeal absent a showing of

fundamental error, precludes appellate review of unpreserved

claims of ineffective assistance of trial counsel on direct appeal.

Such ineffective assistance of counsel claims may therefore only be

raised on direct appeal in the context of a fundamental error

argument. Ineffective assistance of counsel claims relying upon the

less-demanding Strickland 1 standard are properly considered upon

the filing of a legally sufficient postconviction motion in the trial

court.

                            I. BACKGROUND

     After Henry Steiger’s jury found him guilty of second-degree

murder, he appealed his judgment and sentence to the First

District. Steiger, 301 So. 3d at 489. As relevant to the

jurisdictional issue before this Court, on appeal Steiger argued that

the face of the record shows that his trial counsel was ineffective in

several respects. See id.




     1. Strickland v. Washington, 466 U.S. 668 (1984).

                                  -2-
     However, in affirming Steiger’s judgment and sentence, the

First District declined to address Steiger’s claims of ineffective

assistance, reasoning as follows:

     Steiger did not preserve any of the errors he advances on
     appeal and he does not make any claim of fundamental
     error. See Latson v. State, 193 So. 3d 1070, 1072 (Fla.
     1st DCA 2016) (Winokur, J., concurring) (observing that
     “if the defendant does not properly preserve a claimed
     error, the only statutorily-authorized basis for appellate
     relief is a showing that the error is fundamental”). Still,
     Steiger maintains that this Court may address on direct
     appeal his claims that his counsel was ineffective, even
     without a claim of fundamental error. But as Judge
     Winokur explained in his concurring opinion in Latson,
     an appellate court should not allow an appellant to avoid
     application of the fundamental error standard by
     asserting that his trial counsel’s “failure to raise issues
     constitutes ineffective assistance, which entails a
     different standard that could provide an easier path to
     reversal, and which deprives trial counsel of the
     opportunity to defend themselves against allegations of
     unprofessional conduct.” Id. at 1074. We agree. And so,
     because Steiger makes no claim of fundamental error, we
     decline to consider his claims of ineffective assistance of
     counsel in this direct appeal.

Steiger, 301 So. 3d at 489-90 (citation omitted).

     The statute referenced by the First District is section

924.051(3), which prohibits a direct appeal in a criminal case

“unless a prejudicial error is alleged and is properly preserved or, if

not properly preserved, would constitute fundamental error.”



                                  -3-
Without addressing this statutory limitation, and where no claim of

fundamental error was alleged, the district courts in the conflict

decisions of Howard and Kruse reviewed and granted relief based

on unpreserved claims of ineffective assistance of trial counsel,

reasoning that the ineffective assistance of counsel was apparent on

the face of the record and that it would be a waste of judicial

resources to not grant relief. See Howard, 288 So. 3d at 1251

(finding ineffective assistance of counsel apparent on the face of the

record where trial counsel “fail[ed] to respond to the trial court’s

request for authority” on the point that “[t]he State’s evidence and

argument about [the defendant’s] prearrest, pre-Miranda silence

were improper” and where trial counsel “fail[ed] to further object to

such evidence and argument”); see also Kruse, 222 So. 3d at 17

(finding trial counsel “constitutionally ineffective” where it was

apparent on the face of the record that counsel had “neglect[ed] to

request a self-defense instruction that was clearly applicable to the

facts and circumstances of the case”).

     Similarly, this Court has also held that the standard for

reviewing an unpreserved claim of ineffective assistance of trial

counsel on direct appeal is that “[a]n appellate court initially


                                  -4-
reviewing a conviction will only grant relief for ineffective assistance

of counsel where the ineffectiveness of counsel is apparent from the

face of the record before the appellate court and a waste of judicial

resources would result from remanding the matter to the lower

court for further litigation.” Monroe v. State, 191 So. 3d 395, 403

(Fla. 2016). However, in applying this standard, like the district

courts in Howard and Kruse, the Monroe court did not address the

showing of fundamental error required by section 924.051(3) to

raise and obtain relief on direct appeal based on a claim of

unpreserved error. To the contrary, the Monroe court granted relief

based on an unpreserved claim of ineffective assistance of trial

counsel that stemmed from trial counsel’s failure to preserve a

sufficiency of the evidence issue for appeal after holding that the

unpreserved sufficiency challenge was not reviewable for

fundamental error. Id. at 401-04.

     We accepted discretionary jurisdiction to resolve the express

and direct conflict. See art. V, § 3(b)(3), Fla. Const.

                             II. ANALYSIS

     The conflict issue is whether appellate courts may address the

merits of an unpreserved claim of ineffective assistance of trial


                                  -5-
counsel on direct appeal, absent an allegation of fundamental error.

We review this pure question of law de novo, see Daniels v. State,

121 So. 3d 409, 413 (Fla. 2013), and agree with the First District in

Steiger that, based on the plain language of section 924.051(3),

unpreserved claims of ineffective assistance of counsel cannot be

raised or result in reversal on direct appeal because the statute

requires the more demanding showing of fundamental error.

Steiger, 301 So. 3d at 489-90.2

     (A) The plain text of the statute prohibits raising
     unpreserved error on direct appeal absent a showing of
     fundamental error.

     Section 924.051 governs the “[t]erms and conditions of

appeals and collateral review in criminal cases,” and subsection (3)

of that statute provides in its entirety as follows:

     An appeal may not be taken from a judgment or order of
     a trial court unless a prejudicial error is alleged and is
     properly preserved or, if not properly preserved, would
     constitute fundamental error. A judgment or sentence
     may be reversed on appeal only when an appellate court

      2. In addition to the conflict issue, Steiger raises several
claims of ineffective assistance of counsel, a claim of error regarding
the admission of certain photographs, and a claim of cumulative
error. We limit our review to the conflict issue. See Collins v. State,
766 So. 2d 1009, 1110 n.3 (Fla. 2000) (declining to address other
issues that were not the basis for exercising express and direct
conflict jurisdiction).

                                  -6-
     determines after a review of the complete record that
     prejudicial error occurred and was properly preserved in
     the trial court or, if not properly preserved, would
     constitute fundamental error.

§ 924.051(3), Fla. Stat. 3

     Section 924.051(2) states that “[t]he right to direct appeal . . .

may only be implemented in strict accordance with the terms and

conditions of this section,” and section 924.051(8) provides that it is

“the intent of the Legislature that all terms and conditions of direct

appeal . . . be strictly enforced, including the application of

procedural bars, to ensure that all claims of error are raised and

resolved at the first opportunity,” and, moreover, that it is “also the

Legislature’s intent that all procedural bars to direct appeal . . . be

fully enforced by the courts of this state.”

     Section 924.051 governs “[t]erms and conditions of appeals

and collateral review in criminal cases” and therefore governs

Steiger’s claims of ineffective assistance of counsel. When the plain

text of section 924.051 is applied, an appeal may be taken from a



     3. The Legislature enacted section 924.051(3) as part of the
Criminal Appeal Reform Act of 1996. Ch. 96-248, § 4, at 953-54,
Laws of Fla. The language of section 924.051(3) has remained the
same since its enactment in 1996. See § 924.051(3), Fla. Stat.
(2020).

                                  -7-
judgment or order of a trial court only where a criminal defendant

alleges prejudicial error that was properly preserved or otherwise

alleges that unpreserved error would constitute fundamental error.

§ 924.051(3). Further, an appellate court may only reverse a

judgment or sentence if it determines after a complete review of the

record that prejudicial error occurred and was preserved in the trial

court or would constitute fundamental error. Id.

     Steiger concedes that his ineffective assistance of counsel

claims were not properly preserved, and he does not allege that

fundamental error occurred at trial. The plain language of section

924.051(3) therefore precludes review of his claims of ineffective

assistance of trial counsel on direct appeal. See State v. Jefferson,

758 So. 2d 661, 664 (Fla. 2000) (“We find it is clear from the

language of section 924.051(3) that the Legislature intended to

condition reversal of a conviction on the existence of either an error

that was preserved and prejudicial or an unpreserved error that

constitutes fundamental error.”); see also State v. Maisonet-

Maldonado, 308 So. 3d 63, 68 (Fla. 2020) (“If the language of the

statute is clear, ‘the statute is given its plain meaning, and the

court does not look behind the statute’s plain language for


                                 -8-
legislative intent or resort to rules of statutory construction.’ ”)

(quoting Halifax Hosp. Med. Ctr. v. State, 278 So. 3d 545, 547 (Fla.

2019)).

     This conclusion flows from the fact that ineffective assistance

of trial counsel claims under Strickland afford criminal defendants

an easier path to relief than claims of fundamental error. To

succeed on a claim of ineffective assistance of counsel, a claimant

need only show that trial counsel was deficient and that the

deficiency prejudiced the claimant. See Bolin v. State, 41 So. 3d

151, 155 (Fla. 2010) (citing Maxwell v. Wainwright, 490 So. 2d 927,

932 (Fla 1986)). In contrast to the showing of prejudice required by

Strickland—i.e., “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different,” 466 U.S. at 694—establishing fundamental error is more

difficult because, to be fundamental, an “error must reach down

into the validity of the trial itself to the extent that a verdict of guilty

could not have been obtained without the assistance of the alleged

error.” F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003) (quoting

Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)).




                                   -9-
     In addressing unpreserved claims of ineffective assistance of

trial counsel on direct appeal, the courts in Howard, Kruse, and

Monroe sensibly considered the need to preserve scarce judicial

resources in cases where it is apparent on the face of the record

that the defendant would ultimately obtain postconviction relief

based on ineffective assistance of trial counsel. Although this might

be a prudent exception to the statutory requirement that

unpreserved claims of error cannot be raised or result in relief on

direct appeal absent a showing of fundamental error, the State

correctly argues that section 924.051(3) does not contain a waste-

of-judicial-resources exception, and we cannot rewrite the statute.

     (B) Steiger’s constitutional counterarguments are
     meritless.

     Steiger argues that applying section 924.051(3) to preclude

appellate review of unpreserved claims of ineffective assistance of

trial counsel abrogates the Sixth Amendment’s guarantee to

effective assistance of counsel. We disagree. Section 924.051(3)

merely operates as a condition to the right to direct appeal and

places unpreserved ineffective assistance of trial counsel claims

within the postconviction framework. See Martinez v. Ryan, 566



                                - 10 -
U.S. 1, 13 (2012) (acknowledging that the Court was not “imply[ing

that] the State acted with any impropriety by reserving the claim of

ineffective assistance for a collateral proceeding” and that “there are

sound reasons for deferring consideration of ineffective-assistance-

of-trial-counsel claims until the collateral-review stage”).

Accordingly, the Sixth Amendment does not allow Steiger to avoid

the plain text of section 924.051(3).

     Nor does separation of powers provide a basis to avoid the

statute’s plain text. The Florida Legislature may condition the right

to appeal without violating the separation of powers outlined in the

Florida Constitution. In Amendments to the Florida Rules of

Appellate Procedure, 696 So. 2d 1103, 1104 (Fla. 1996), the Florida

Bar Appellate Rules Committee, public defenders, and other

commenters argued that the provisions in section 924.051 are

procedural and could not override this Court’s Rules of Appellate

Procedure, while the Attorney General contended that the statute’s

provisions are substantive and controlling. This Court recognized

the constitutional protection of the right to appeal provided in

article V, section 4(b) of the Florida Constitution, but concluded

that “the legislature may implement this constitutional right and


                                 - 11 -
place reasonable conditions upon it so long as they do not thwart

the litigants’ legitimate appellate rights.” Id. The Court noted that

“[o]f course, this Court continues to have jurisdiction over the

practice and procedure relating to appeals,” and held that “the

legislature could reasonably condition the right to appeal upon the

preservation of a prejudicial error or the assertion of a fundamental

error.” Id. at 1104-05; cf. also Jefferson, 758 So. 2d at 663-66

(holding that 924.051(3)’s conditioning of the reversal of a criminal

conviction on the existence of either an error that was preserved

and prejudicial, or an unpreserved error that constitutes

fundamental error, does not violate the Florida Constitution as it

merely codified existing procedural bars to appellate review).

     With these considerations in mind, the application of section

924.051(3)’s preservation requirement to ineffective assistance of

trial counsel claims on direct appeal imposes a reasonable

condition upon a criminal defendant’s constitutional right to a

direct appeal, leaving such unpreserved claims to either be

separately alleged as fundamental error or brought in

postconviction proceedings as ineffective assistance of trial counsel

claims.


                                - 12 -
     (C) The establishment of a procedural rule could
     assist in the preservation of scarce judicial resources.

     Although the plain text of the statute resolves the conflict

issue, in the rare case where appellate counsel reasonably

concludes that ineffective assistance of the appellant’s trial counsel

appears on the face of the record, it might be helpful to adopt a

procedural rule that would allow the trial court to consider the

claim and grant relief before merits briefing in the direct appeal.

Accordingly, we refer this matter to the Criminal Procedure Rules

Committee of The Florida Bar for consideration of a proposed rule

and suggest that the current rule governing motions to correct

sentencing errors, Florida Rule of Criminal Procedure 3.800(b), may

provide a useful guide.

                          III. CONCLUSION

     Based on the plain text of section 924.051(3), an unpreserved

error may only be raised and result in reversal on direct appeal

where the error is fundamental. Because a showing of fundamental

error is not required to prevail on a claim of ineffective assistance of

trial counsel under Strickland, such an unpreserved claim may not

be raised or result in reversal on direct appeal. Rather, to raise and



                                 - 13 -
prevail on any unpreserved claim of error on direct appeal, the

defendant must demonstrate fundamental error. Accordingly, we

approve the First District’s decision in Steiger to the extent it is

consistent, recede from Monroe as clearly erroneous, to the extent

that it conflicts with this opinion, and disapprove of the district

courts’ decisions in Howard and Kruse to the extent those decisions

failed to apply the fundamental-error limitation of section

924.051(3) in reviewing and granting relief based on unpreserved

claims of ineffective assistance of trial counsel on direct appeal.

     It is so ordered.

CANADY, C.J., and POLSTON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
LABARGA, J., concurs specially with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

LABARGA, J., specially concurring.

     Given the constraints set forth in section 924.051(3), Florida

Statutes (2020), I concur with the majority and agree that Steiger’s

claims of ineffective assistance of trial counsel are not cognizable on

direct appeal.




                                 - 14 -
     However, I also understand the rationale, as discussed in

Howard 4 and Kruse, 5 for considering such claims on direct appeal

in rare instances. Considering a claim of ineffective assistance of

trial counsel on direct appeal—where trial counsel’s deficient

performance is obvious on its face, lacks a strategic explanation,

and resulted in prejudice to the defendant—may be a more efficient

and judicious use of the limited resources in Florida’s state courts.

     Nonetheless, section 924.051(3) is determinative in this case.

Where Steiger’s claims of ineffective assistance of trial counsel were

based on unpreserved errors, and Steiger failed to assert

fundamental error, such claims must be considered in the context

of a motion for postconviction relief under the standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984).

Application for Review of the Decision of the District Court of Appeal
     Direct Conflict of Decisions

     First District - Case No. 1D19-3217

     (Escambia County)



    4. Howard v. State, 288 So. 3d 1239, 1249 (Fla. 2d DCA
2020).

     5. Kruse v. State, 222 So. 3d 13, 17 (Fla. 4th DCA 2017).


                                - 15 -
Jared Brown of Brown Legal PLLC, Fort Lauderdale, Florida; and
Martin Roth of Martin L. Roth, P.A., Fort Lauderdale, Florida,

     for Petitioner

Ashley Moody, Attorney General, Trisha Meggs Pate, Bureau Chief,
and Daren L. Shippy, Assistant Attorney General, Tallahassee,
Florida,

     for Respondent




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