Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-1250 _____________________________ TYRONE IVEY, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Madison County. Melissa G. Olin, Judge. July 6, 2021 PER CURIAM. Appellant Tyrone James Ivey, Jr., challenges his convictions and sentences for attempted manslaughter by act with a deadly weapon, aggravated assault with a deadly weapon, and leaving the scene of a crash involving an injury. We affirm. In this direct appeal, Ivey claims trial counsel was ineffective in his representation of Appellant and that counsel had a conflict of interest in his representation of Appellant. Neither claim warrants relief on direct appeal. To successfully prevail on an ineffective assistance claim on direct appeal, the ineffectiveness of counsel must be “apparent from the face of the record before the appellate court” and it also must be apparent that “a waste of judicial resources would result from remanding the matter to the lower court for further litigation.” Monroe v. State, 191 So. 3d 395, 403 (Fla. 2016) (citing Robards v. State, 112 So. 3d 1256, 1267 (Fla. 2013)). It is not apparent from the face of the record before us that trial counsel was ineffective on the grounds alleged. A claim of a conflict of interest by trial counsel is a species of ineffective assistance of counsel claim and is analyzed under the familiar Strickland * standard. See Hunter v. State, 817 So. 2d 786, 791 (Fla. 2002). A conflict of interest exists only when counsel “actively represent[s] conflicting interests.” Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). Disagreements over trial strategy, such as occurred during Appellant’s trial, do not amount to a conflict of interest. Appellant also challenges the denial of his motion to correct illegal sentence filed under rule 3.800(b), Florida Rules of Criminal Procedure. But the alleged scoresheet error does not merit relief. “When a scoresheet error is raised on direct appeal via a rule 3.800(b) motion, courts must apply the ‘would-have-been-imposed’ test to determine whether a scoresheet error warrants resentencing.” Ray v. State, 987 So. 2d 155, 156 (Fla. 1st DCA 2008) (citing Brooks v. State, 969 So. 2d 238, 241–42 (Fla. 2007)). “Under the ‘would-have-been-imposed’ test, scoresheet error is considered harmless if the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet.” Id.; see also Love v. State, 298 So. 3d 735, 735 (Fla. 1st DCA 2020) (requiring reversal and remand for resentencing when “the record does not conclusively show that [the defendant] would have received the same sentence had a correct scoresheet been used”). Given the instant record, which reflects among other things, that the trial court imposed maximum sentences and ordered such sentences to be served consecutively, and given the * Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding that to establish ineffective assistance, a defendant must show that counsel’s performance was deficient to the extent that the Sixth Amendment right to counsel was violated and that the deficiency prejudiced the defendant). 2 trial court’s comments at sentencing, the alleged scoresheet error does not warrant a remand for resentencing. Further, as to the imposition of costs, the record reflects that the trial court did orally announce the costs at the sentencing hearing, contrary to Appellant’s claim. No other error is apparent on the record. In sum, we affirm without prejudice to the raising of Appellant’s ineffective assistance claims in a post-conviction motion. AFFIRMED. OSTERHAUS and BILBREY, JJ., concur; TANENBAUM, J., concurs with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ TANENBAUM, J., concurring. The Legislature cabins by statute a district court’s authority to grant relief in a criminal case. The court cannot reverse unless “prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.” § 924.051(3), Fla. Stat.; see id. (1) (defining “prejudicial error” and “preserved” with reference to the trial court). This limitation is consistent with the general understanding of what a direct appeal is: “[T]he main question on direct appeal is whether the trial court erred.” Bruno v. State, 807 So. 2d 55, 63 (Fla. 2001); see also Tyson v. Aikman, 31 So. 2d 272, 275 (Fla. 1947) (explaining that “[a]n appeal is to consider errors alleged to have been committed by the [trial court]”); M.F.S. Land Co. v. J. Ray Arnold Cypress Co., 139 So. 200, 201 (Fla. 1931) (explaining that “the purpose of an appeal is to correct a harmful error which [the trial court] may have committed”). 3 On direct appeal, then, we must limit our review to “only those questions which were before the trial court and upon which a ruling adverse to the appealing party was made.” State v. Barber, 301 So. 2d 7, 9 (Fla. 1974). We simply have no authority to grant relief on an ineffective-assistance claim that is unrelated to an alleged error committed by the trial court. See id. (holding that an ineffective-assistance claim cannot be raised for the first time on direct appeal because “it is a matter that has not previously been ruled upon by the trial Court”). I agree with Judge Winokur “that the practice of permitting claims of effective assistance of counsel on direct appeal stem[s] from a misreading of” prior supreme court decisions; certainly, it “is directly contrary to controlling statutory law.” Latson v. State, 193 So. 3d 1070, 1074 (Fla. 1st DCA 2016) (Winokur, J., concurring); see also id. at 1073–75 (Winokur, J., concurring) (noting that historically, the supreme court has addressed ineffective-assistance claims in direct appeal cases, but only in the context of “alleged errors of the trial court that implicated [appellants’] right to effective assistance of counsel”). Judge Winokur also is correct to suggest that the supreme court’s decision in Monroe v. State, 191 So. 3d 395 (Fla. 2016) is a one-off, limited to the case’s facts. See Latson, 193 So. 3d at 1075. The supreme court of course “does not intentionally overrule itself sub silentio.” Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002). So it is telling that the court in Monroe failed to mention or discuss how in the past it had closely hewed to the principle stated in Barber (which in turn is consistent with section 924.051(3)) when considering ineffective-assistance claims on direct appeal. Cf. Foster v. State, 387 So. 2d 344, 345 (Fla. 1980) (holding that the defendant was denied effective assistance as a result of the trial court’s erroneous joint appointment of counsel to represent both the defendant and a state witness against him, which created a clear conflict of interest); Stewart v. State, 420 So. 2d 862, 864 (Fla. 1982) (considering ineffective-assistance claim in the context of whether trial court erred by not granting a continuance to allow for another psychological examination that might have assisted counsel in arguing mitigation at sentencing); Wuornos v. State, 676 So. 2d 972, 974 (Fla. 1996) (rejecting argument that the trial court 4 erred in accepting the defendant’s plea because the argument was premised on counsel’s alleged conflict of interest, which was an ineffective-assistance claim not cognizable on direct appeal). Even with Monroe, it is fair to say that we remain limited in any direct appeal to a review of whether the trial court committed error, even when a defendant asserts that the assistance of counsel was ineffective on the face of the record. This in turn is the problem with Ivey’s ineffective-assistance claims, neither of which addresses what the trial court did or failed to do. Notably, he does not challenge the trial court’s determination that his counsel was effective following a Nelson hearing, which was held at his request. There is no mention at all of an error committed by the trial court regarding his counsel, let alone an argument that the trial court committed fundamental error in that respect. Ivey instead makes two claims of ineffective assistance of counsel that have nothing to do with a decision of the trial court. He claims that during the trial, his counsel labored under a conflict of interest, and that his counsel failed to make certain objections that any competent counsel reasonably would have made. As to the first claim, though, the claimed conflict is not even a real conflict; Ivey just points to parts of the record where counsel did what Ivey asked even though counsel did not necessarily agree with the strategy. And Ivey’s contention regarding the objections is an improper attempt to circumvent the fundamental-error standard of review that applies to claimed errors that go unpreserved. See Latson, 193 So. 3d at 1074 (Winokur, J., concurring) (“The appellant should not be permitted to circumvent [the exacting fundamental-error standard] by claiming that the failure to raise issues constitutes ineffective assistance.”); cf. Steiger v. State, 301 So. 3d 485, 489 (Fla. 1st DCA 2020), rev. granted, Case No. SC20-1404, 2020 WL 7647558 (Fla. 2020) (rejecting ineffective-assistance claims on direct appeal because the appellant “did not preserve any of the errors he advances on appeal and he does not make any claim of fundamental error”). Ivey fails to point to any action (or inaction) by the trial court that we should be reviewing for error, fundamental or otherwise, and we have no legal authority to grant the relief he requests on direct appeal. 5 That said, the record reflects a difficult defendant, and the trial court managed the proceedings appropriately under the circumstances. I agree that we should affirm on the ineffective- assistance claims, under the analysis I set out here. I join the majority’s rationale for affirming the sentence and costs imposed. _____________________________ Jessica J. Yeary, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellee. 6