Ineffective Assistance of Counsel | Florida Rule of Criminal Procedure 3.850

Ineffective Assistance of Counsel

Florida Rule of Criminal Procedure 3.850

An appeal based on the Florida Rule of Criminal Procedure 3.850, is an appeal of last resort. It is used when all other appeals have been exhausted. This appeal is a claim of ineffective assistance of counsel, in which the defense attorney was unprepared, or incompetent in representing the client. An appeal of this type suggests that if it weren’t for the incompetent attorney, the end-result of the case would have been different; for this appeal to be effective, the appellant must substantiate this claim. The United States Supreme Court decision of Strickland v. Washington established the standard to determine the legitimacy of the claim of ineffective assistance:

“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Smith v. State

Michael Smith was convicted of three counts of vehicular homicide, and sentenced to 21.5 years in Florida State Prison. In trial, the prosecution presented evidence which claimed Smith ran a red light, and as a resulAttorney | Appealt struck another vehicle; this resulted in the death of three people. The jury acquitted smith of his three DUI Manslaughter charges, and the trial court dismissed charges of DUI with reckless driving causing serious bodily injury.

Smith filed a motion and claimed his attorney was not effective; apparently his attorney did not call an accident reconstruction expert to counter the claims of the prosecution. An evidentiary hearing was held, and the attorney testified to the fact that he decided not to hire an accident reconstruction expert after evaluating all strategies for trial. The trial court found that the decision not to hire the expert was “…the product of a reasonable, competent assistance, made after careful review of alternative options which existed at the time.” Thus, the trial court found the attorney’s testimony to be credible, and denied the motion.


The Fourth District Court of Appeal of Florida agrees with the trial court’s decision. Based on the totality of the evidence that was presented at trial, the appellant failed to satisfy the prejudice prong of the Strickland v. Washington decision. There is no reasonable probability that the outcome of the trial would have been any different if the defense attorney chose to hire the expert witness.

If you have been charged with DUI or any related charges, an aggressive DUI attorney is imperative. Kenneth Padowitz, P.A. handles a variety of misdemeanor and high-stakes felony DUI cases throughout South Florida.  Contact our law office to schedule an appointment with our DUI lawyer for a free consultation.