04-3231 CORVO V. STATE

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State: Florida

Court: Florida Third District Court

Docket No: 04-3231 CORVO V. STATE

Case Date: 12/07/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2005

RENE CORVO, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** ** ** LOWER TRIBUNAL NO. 02-11406 CASE NO. 3D04-3231

Opinion filed December 7, 2005. An Appeal from the Circuit Court for Miami-Dade County, Julio E. Jimenez, Judge. Bennett H. Brummer, Public Defender and Clayton R. Kaeiser, Special Assistant Public Defender, for appellant. Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.

Before FLETCHER, WELLS, and SUAREZ, JJ. SUAREZ, J. Rene Corvo (the "Defendant") appeals his convictions for third-degree grand theft and dealing in stolen property. We

affirm his conviction for dealing in stolen property and reverse his conviction and sentence for grand theft. The Defendant contends that he should receive a new trial because trial counsel was ineffective for making an inaccurate stipulation at trial. He also asserts that his convictions for

both grand theft and dealing in stolen property are illegal dual convictions because they relate to the same property. The State

argues that the Defendant's claim of ineffective assistance of trial counsel is not cognizable on direct appeal, and that the dual convictions do not constitute fundamental error. The Defendant was charged with burglary of an unoccupied dwelling, property. third-degree grand theft, and dealing in stolen

He allegedly broke into the victim's home and took

items including jewelry, conga drums, and electronic equipment. The Defendant denied that he was involved in the burglary but admitted that he pawned the victim's jewelry as a favor to a friend shortly after the burglary. His fingerprints appear on the pawn slip. The police recovered the stolen conga drums from the apartment where the Defendant was arrested a few days after the burglary and pawning of the jewelry. The jury acquitted the Defendant of burglary and convicted him of the grand theft and dealing in stolen property charges. The trial court sentenced the Defendant as a the habitual dealing offender in stolen to thirty years and a

imprisonment

for

property,

2

concurrent

ten-year

term

for

the

grand

theft.

The

Defendant

challenges his convictions in this belated appeal. First, we agree with the State that the Defendant's claim of ineffective assistance of trial counsel is not cognizable on this direct appeal. With rare exceptions, ineffective

assistance of trial counsel claims should be raised on a motion for post conviction relief. Gore v. State, 784 So. 2d 418, 438 (Fla. 2001). "Only in cases where the incompetence is apparent on the face of the record and prejudice to the defendant is obvious appeal." do appellate courts address this issue on direct

McMullen v. State, 876 So. 2d 589 (Fla. 5th DCA 2004).

In the instant case, it is not apparent on the face of the record that trial counsel was ineffective. Counsel mistakenly agreed to stipulate that the Defendant's fingerprints were found inside the victim's burglarized home. Counsel recognized her

error almost immediately and withdrew the stipulation. Nor is it obvious that the Defendant was prejudiced by counsel's error. As stated above, counsel corrected herself almost immediately. Furthermore, the jury acquitted the Defendant on the burglary charge to which the erroneous stipulation pertained. As the

record reveals no error which resulted in obvious prejudice to the Defendant, this claim of ineffective assistance of trial counsel is not cognizable on this direct appeal. The Defendant may bring this claim on a motion for post conviction relief. See

3

White v. State, 850 So. 2d 624 (Fla. 2d DCA 2003) (affirming without prejudice to the defendant's right to file a motion for post conviction relief pursuant to Florida Rule of Criminal

Procedure 3.850). Second, we agree with the Defendant that his conviction for grand theft should be reversed. Convictions for both dealing in stolen property and grand theft violate double jeopardy when the convictions arise "in connection with one scheme or course of conduct. . . ."

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