NEWBERRY V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 09-3385

Case Date: 12/29/2010

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2010
Opinion filed December 29, 2010. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D09-3385 Lower Tribunal No. 06-35939 ________________

Ryan Newberry,
Appellant, vs.

The State of Florida,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Beatrice A. Butchko, Judge. Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant. Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.

Before WELLS, SHEPHERD, and SUAREZ, JJ. WELLS, Judge. We affirm Ryan Newberry's convictions for burglary of an unoccupied conveyance and grand theft third degree finding no error in the trial court's denial

of his motion for judgment of acquittal. However, we decline, without prejudice, to address Newberry's ineffective assistance of counsel claim regarding display of his arms during trial to establish that he had no tattoos. See Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla. 1987) ("Generally, ineffective assistance of trial counsel will not be cognizable on direct appeal . . . [although t]here are rare exceptions where . . . the ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue."); Rios v. State, 730 So. 2d 831, 832 (Fla. 3d DCA 1999) (acknowledging "that ineffective assistance of counsel is ordinarily not cognizable on direct appeal" and "the limited exception to this general rule, [where] both the deficient performance of counsel and the prejudice to the defendant are apparent on the face of the record"). Affirmed.

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