Alexis v. State, 1D12–5824.

• Decision Date: 09 May 2013
• Docket Number: No. 1D12–5824.,1D12–5824.
• Citation: 112 So.3d 144
• Parties: Reuben ALEXIS, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

112 So.3d 144

Reuben ALEXIS, Petitioner,

v.STATE of Florida, Respondent.

No. 1D12–5824.

District Court of Appeal of Florida,

First District.

May 9, 2013.

Dane K. Chase of Bower Rodriguez, P.A., Tampa, for Petitioner.

Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Respondent.

PER CURIAM.

By timely petition alleging ineffective assistance of appellate counsel, Reuben Alexis argues that his appellate attorney was ineffective in the direct appeal of his conviction for aggravated assault with a firearm with intent to kill. The crux of Alexis' argument is that his waiver of the right to conflict-free trial counsel was invalid, that this issue was fundamental error or preserved for review, and that his appellate attorney was ineffective for failing to raise the issue. We grant the petition.

At a pre-trial hearing held February 25, 2009, Alexis' trial counsel alerted the trial court to the existence of a potential conflict of interest arising from counsel's simultaneous representation of both Alexis and his co-defendant, Terry Guerrier as a result of an incriminating statement made by Guerrier about Alexis. At that hearing, the following exchange occurred:

MR. HARRISON [Trial Counsel]: And by the way Judge, since both young men are here, I discussed with them a possible conflict of interest here because of the facts. Terry Guerrier, though, wants me to continue to be his attorney; because he emphatically denies ever making the statement to law enforcement. So I think that would take it out of the conflict. But I told him it was his call. And he's in the courtroom, but he's told me he wants me to continue to represent both of them. And Mr. Alexis says the same thing.

MR. CHOJNOWSKI [State Attorney]: And, Your Honor, for 3.850 purposes, could we inquire of the defendants to make sure that there is no conflict, and that they waive any possible conflict by being represented by the same counsel?

THE COURT: Okay. Let's bring them on up, then.

And which one is this?

MR. HARRISON: This is Terry Guerrier, Your Honor.

DEFENDANT GUERRIER: Terry Guerrier.

THE COURT: Mr. Guerrier, and this then must be Mr. Alexis.

DEFENDANT ALEXIS: Reuben Alexis.

THE COURT: Okay. And the State Attorney does want to make sure that you don't come back later; and file a claim and say Mr. Harrison was ineffective, because he was representing you with a conflict. But you heard what he just said, Mr. Harrison?

DEFENDANT GUERRIER: Yes, sir.

THE COURT: And knowing that there's that potential conflict, both of you still want him to be your attorney?

DEFENDANT GUERRIER: Yes, sir.

DEFENDANT ALEXIS: Yes, Your Honor.

THE COURT: Okay. Is that okay?

MR. CHOJNOWSKI: That should be sufficient, Your Honor.

THE COURT: Okay.

MR. HARRISON: Thank you, Judge.

Alexis argues that his appellate attorney was ineffective for failing to ensure that a transcript of the February 25, 2009, hearing was included in the record, and for failing to raise the issue that his waiver of his trial counsel's conflict of interest was invalid. We agree.

Larzelere v. State, 676 So.2d 394, 403 (Fla.1996), requires that for such a waiver to be valid, the defendant must be aware of (1) the conflict, (2) the fact that the conflict could affect the attorney's representation of the defendant, and (3)...