DONNIE LEE PRINCE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this post-conviction appeal, the Fourth District affirmed the trial court's denial of Prince's ineffective assistance of counsel claims, finding he was properly advised of his right to testify and failed to properly assert other alleged errors. The court also affirmed the denial of a prosecutorial vindictiveness claim but noted potential habeas corpus relief regarding appellate counsel's failure to raise a Whitehead issue.
The court affirmed the trial court's denial of the ineffective assistance claim regarding the right to testify because the record showed Prince was properly advised. The court also affirmed the denial of the prosecutorial vindictiveness claim because Prince failed to allege any factual basis for such a claim. However, the affirmance on the vindictiveness issue was without prejudice to Prince's right to seek habeas corpus relief based on appellate counsel's failure to raise the Whitehead issue.
[1] A defendant's claim of ineffective assistance of counsel for failure to advise on the right to testify is properly denied when the record demonstrates the defendant was a…
[2] Appellate courts will not consider alleged errors by counsel that were not properly asserted as claims in the motion for post-conviction relief.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the record is replete with evidence that the appellant was properly advised”
Establishes that Prince received proper advisement regarding his right to testify, defeating his ineffective assistance claim on this ground
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Join FLexlaw to unlock all legal intelligencePrince was sentenced to life imprisonment under the habitual offender statute after refusing a pretrial plea offer from the state. His codefendants wh…
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PER CURIAM.
AFFIRMED. In these post-conviction proceedings the trial court granted appellant an evidentiary hearing on a claim that his counsel was ineffective in failing to properly advise him concerning his right to testify on his own behalf. We find no error by the trial court in denying appellant’s claim on this issue, since the record is replete with evidence that the appellant was properly advised. While there is argument on appeal as to other alleged errors by counsel, we see no record indication that these alleged errors were properly asserted as claims in the motion for post-conviction relief. Accordingly, we affirm the trial court’s disposition.
We also affirm the trial court’s denial of appellant’s claim of prosecutorial vindictiveness based upon appellant’s sentence of life imprisonment under the habitual offender statute compared to the light sentences received by his codefendants who struck plea bargains with the state. The appellant refused a pretrial plea offer from the state. The appellant has simply failed to allege any factual basis to state a claim for prosecutorial vindictiveness. We note that the trial court did express concern for the apparent harshness of the sentence, a harshness conceded by the state in its brief. The trial court also noted that the appellant may have had the benefit of the decision in Whitehead v. State, 498 So. 2d 863 (Fla.1986) had it been properly raised, since Whitehead was decided just one month after appellant was sentenced. However, no such claim was asserted by appellant below. Our affirmance on this issue is without prejudice to appellant’s right to claim by habeas corpus relief appellate counsel’s failure to raise the Whitehead issue in appellant’s prior appeal.
Accordingly, based upon the above discussion we affirm.
ANSTEAD and WARNER JJ., and OWEN, WILLIAM C., Jr., Senior Judge, concur.