Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-1276 _____________________________ SILKEARIA MARSHALL, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Mark Borello, Judge. February 6, 2020 PER CURIAM. Silkearia Marshall was charged with one count of attempted second-degree murder and one count of shooting or throwing deadly missiles. Marshall was found guilty as charged on both counts at jury trial. The trial court sentenced her to thirty years imprisonment on the attempted second-degree murder count with a twenty-year minimum mandatory term and fifteen years for the shooting deadly missile count. On appeal, Marshall argues that the court erred in instructing the jury on a lesser-included offense, that her conviction for shooting deadly missiles was not supported by sufficient evidence, and that her thirty-year sentence was impermissible. We reject Marshall’s claim that her sentence was improper. We also find that her arguments regarding the jury instructions and the sufficiency of the shooting deadly missile count were not properly preserved for appellate review. With regard to the two unpreserved issues, Marshall argues that, even if the issues were unpreserved, she is still entitled to relief because they both constitute ineffective assistance on the face of the record. “Claims of ineffective assistance of counsel are rarely addressed on direct appeal because they normally turn on questions of fact and both sides are entitled to present relevant evidence at an evidentiary hearing.” Barnett v. State, 181 So. 3d 534, 536 (Fla. 1st DCA 2015). In order to prevail on an ineffective- assistance claim on direct appeal, an appellant must demonstrate “‘ineffectiveness on the face of the record, indisputable prejudice, and an inconceivable tactical explanation for the conduct.’” Morales v. State, 170 So.3d 63, 67 (Fla. 1st DCA 2015). We find that Marshall does not meet these standards. In arguing that she is entitled to relief even if the issues are unpreserved, we note that Marshall does not argue that they constitute fundamental error. Instead, Marshall claims that counsel’s failure to make the correct arguments was ineffective and this ineffectiveness can be addressed on direct appeal. This argument reveals an issue identified by the concurring opinion in Latson v. State, 193 So. 3d 1070 (Fla. 1st DCA 2016) (Winokur, J., concurring). The Latson concurring opinion notes that “if the defendant does not properly preserve a claimed error, the only statutorily-authorized basis for appellate relief is a showing that the error is fundamental.” Id. at 1072. “The appellant should not be permitted to circumvent this standard by claiming that the failure to raise issues constitutes ineffective assistance, which entails a different standard that could provide an easier path to reversal, and which deprives trial counsel of the opportunity to defend themselves against allegations of unprofessional conduct.” Id. at 1074. We agree. Ineffective assistance cannot be claimed as a means to avoid application of the fundamental error standard on direct appeal. AFFIRMED. B.L. THOMAS, OSTERHAUS, and WINOKUR, JJ., concur. 2 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee. 3