Martinez v. State, s. 94-1073

• Court: Court of Appeal of Florida (US)
• Citation: 655 So.2d 166
• Docket Number: 94-1310,Nos. 94-1073,s. 94-1073
• Parties: 20 Fla. L. Weekly D1136 Luis A. MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
• Decision Date: 10 May 1995

Page 166

655 So.2d 166 20 Fla. L. Weekly D1136 Luis A. MARTINEZ, Appellant,
v.
The STATE of Florida, Appellee. Nos. 94-1073, 94-1310. District Court of Appeal of Florida,
Third District. May 10, 1995.

Page 167

Luis A. Martinez, in pro. per.

Robert A. Butterworth, Atty. Gen., and Mark C. Katzef, Asst. Atty. Gen., for appellee.

Before BARKDULL, GERSTEN and GREEN, JJ.

BARKDULL, Judge.

Martinez was convicted of armed trafficking in cocaine over 400 grams, conspiracy to traffic in cocaine, unlawful possession of a firearm during the commission of a criminal offense, and carrying a concealed firearm. A trial was held, a jury found Martinez guilty on all counts, and this court affirmed. See Martinez v. State, 580 So.2d 894 (Fla. 3d DCA 1991). Martinez then filed a rule 3.850 motion alleging ineffective assistance of trial counsel. Martinez has also filed a writ of habeas corpus in this court alleging ineffective assistance of appellate counsel. This court consolidated those files, and by this opinion we address each of the issues raised by Martinez.

I

By writ of habeas corpus ¹ Martinez argues that his appellate counsel was ineffective in that counsel failed to raise an issue on direct appeal regarding the propriety of a challenge for cause during jury selection. A timely objection must be made in order to preserve the propriety of a challenge for cause for appellate review. See Maxwell v. State, 443 So.2d 967, 970 (Fla.1983). The record demonstrates that the alleged error was not preserved for appellate review. Martinez's appellate counsel simply cannot be deemed to have been ineffective for failing to raise an issue on direct appeal which was not preserved for appellate review. See King v. Dugger, 555 So.2d 355, 360 (Fla.1990); McKinney v. Wainwright, 458 So.2d 1149 (Fla. 1st DCA 1984). Since Martinez's appellate counsel cannot be deemed to have been ineffective, Martinez's petition for writ of habeas corpus is hereby denied.

II

Martinez, by rule 3.850 motion, alleged that trial counsel was ineffective. Florida courts follow a four step test when evaluating claims of ineffective assistance of

Page 168

counsel. ² See Knight v. State, 394 So.2d 997 (Fla.1981). When alleging ineffective assistance the pleader must demonstrate a specific act or omission by counsel which under the circumstances was so prejudicial that there is a substantial likelihood that it affected the outcome of the trial. Knight. When reviewing a claim for ineffective assistance of counsel strategic decisions made by trial counsel during the course of a trial will not be viewed in hindsight. Those decisions will only be considered in light of the totality of the situation at hand. Anderson v. State, 467 So.2d 781 (Fla. 3d DCA 1985). ³

With the above principles in mind we address Martinez's allegations regarding his counsel's alleged ineffectiveness during jury selection. Martinez alleges that counsel was ineffective in that he failed to question some of the potential jurors. What appellant neglects to state is that the trial court conducted a preliminary voir dire of the panel, the state followed up on those questions, and then his codefendant's counsel conducted voir dire of the panel. As Martinez's counsel stated in the record, by the time he was able to ask questions of the potential jurors, all of the good questions had been asked. Counsel cannot be deemed ineffective in accepting the answers already given, he merely...