Levy M. Bishop v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Nos. 1D18-3675 1D18-3783 (Consolidated for disposition) _____________________________

LEVY M. BISHOP,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Leon County. James C. Hankinson, Judge.

April 5, 2019

PER CURIAM.

Levy Bishop appeals orders revoking his probation in two separate cases. We consolidate the appeals, and we affirm.

Bishop raises a single issue on appeal. He contends that there was ineffective assistance of counsel obvious on the face of the record. Although ineffective-assistance claims are typically cognizable only in postconviction proceedings, in rare instances, appellants can raise ineffective assistance on direct appeal. Sims v. State, 260 So. 3d 509, 512 (Fla. 1st DCA 2018). But to do so, an appellant must show, among other things, “indisputable prejudice.” Id. (quoting Morales v. State, 170 So. 3d 63, 67 (Fla. 1st

DCA 2015)). Here, Bishop argues his counsel was ineffective for not adequately pursuing the earlier-filed motion to suppress. But rather than demonstrate indisputable prejudice, Bishop has only argued that had the court granted the motion, Bishop would have prevailed—and that had the court not granted the motion, the issue would have at least been preserved for appellate review. This falls well short of what is necessary to meet the narrow exception to the general rule, so Bishop’s ineffective-assistance claims may only be raised in a postconviction proceeding.

AFFIRMED.

WOLF, BILBREY, and WINSOR, JJ., concur.

_____________________________

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 Kasey Lacey, Assistant Public Defender, Tallahassee, for Appellant.

Ashley B. Moody, Attorney General, for Appellee.