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[W] Spencer v. State4/11/2002
he record of the trial proceedings, appellate counsel has the opportunity for reflection; whereas trial counsel lacks that vantage point. Appellate counsel reviews the written record for possible error, and has access to cases involving similar issues that may have resulted in reversal despite the failure of trial counsel to object.
For these reasons, it very well may constitute deficient performance of appellate counsel to fail to raise an issue that the appellate lawyer is aware (or should be aware) was successfully raised in another reported case, even though the trial counsel's failure to object may not necessarily constitute deficient performance. Thus, the standard for deficient performance of trial counsel may not be synonymous with the standard for deficient performance of appellate counsel in all cases. Once deficiency is established, the prejudice prong of an ineffective assistance of appellate counsel claim can likely be established if it is demonstrated that a reversal would have resulted had the issue been raised on direct appeal.
Chief Justice Wells' position is that if the error was of such magnitude to constitute fundamental error, this would qualify as ineffective assistance of trial counsel for failure to object. Thus, Chief Justice Wells' concurring opinion also assumes that in all such cases, trial counsel's failure to object would be raised in a 3.850 motion. However, this may not always be the case.
Until we adopt a rule that trial counsel is ineffective as a matter of law for failing to object to an error that is fundamental, we must continue to review ineffective assistance of appellate counsel claims to determine if appellate counsel failed to raise a claim that would have amounted to fundamental error, and if so whether the failure to raise the claim constitutes deficient performance sufficient to undermine our confidence in the outcome of the appeal. Accordingly, for all these reasons, I disagree that appellate counsel's failure to raise an issue that would constitute fundamental error should not be the basis for an ineffective assistance of appellate counsel claim.
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