Florida District Courts of Appeal, 2016

Bryan Gordon v. State of Florida

Bryan Gordon v. State of Florida
Florida District Courts of Appeal · Decided May 18, 2016 · Gross, Levine, Conner
192 So. 3d 579; 2016 WL 2906730; 2016 Fla. App. LEXIS 7645 (Southern Reporter, Third Series)

Bryan Gordon v. State of Florida

Opinion

PER CURIAM.

Bryan Gordon appeals the denial of a rule 3.850 motion following an evidentiary *580 hearing. Gordon’s motion raised five claims. The tidal court granted an eviden-tiary 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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.

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