Bryan Gordon v. State of Florida , 2016 Fla. App. LEXIS 7645 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BRYAN GORDON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D12-3128
[May 18, 2016]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Nineteenth Judicial Circuit, St. Lucie County; Dan L. Vaughn, Judge;
L.T. Case No. 2005CF000797A.
Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public
Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L.
Comras, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Bryan Gordon appeals the denial of a rule 3.850 motion following an
evidentiary hearing. Gordon’s motion raised five claims. The trial court
granted an evidentiary hearing on claims 1 through 4. Following the
hearing, the court granted relief on claim 2, ordering resentencing. The
court denied claims 1, 3, and 4 and “all other requested relief.” Although
the court did not expressly discuss claim 5, we conclude that it was
summarily denied, and because the claim was insufficient, we affirm.
In claim 5, appellant alleged his attorneys were ineffective for filing a
motion to mitigate his sentence rather than a rule 3.170(l) motion to
withdraw his plea. Appellant alleged that he was prejudiced by counsel
filing the wrong motion because the issue was not preserved for appeal.
Counsel’s failure to preserve an issue for appeal does not show the
prejudice necessary to establish an ineffective assistance of counsel claim
under Strickland v. Washington, 466 U.S. 668 (1984). Strobridge v. State,
1 So. 3d 1240, 1242 (Fla. 4th DCA 2009). Strickland prejudice focuses on
the proceeding being challenged, here the plea proceedings in the trial
court. See Strobridge, 1 So. 3d at 1242 (discussing Carratelli v. State, 961
So. 2d 312 (Fla. 2007)). Appellant did not demonstrate through his other
claims or any additional allegations that withdrawal of his plea was
necessary to correct a manifest injustice and that there was a reasonable
probability a rule 3.170(l) motion would have been granted.
We affirm the summary denial of claim 5 and affirm without comment
the denial of the other claims.
Affirmed.
GROSS, LEVINE and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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