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St. Thomas Law Review

Richard Sanders

First Page

95

Document Type

Article

Abstract

Sections I and II of the article lay out the general principles of the preservation rule and its fundamental-error exception. Section III discusses the Florida cases that have wrestled with the problem of unpreserved sufficiency issues in criminal cases. The problem in the cases-seen in F.B. and in the pre-F.B. district court cases-is that Florida courts do not say that all valid-but-unpreserved sufficiency issues should be remedied as fundamental error. This means there will be some cases where the evidence in the record fails to establish all the elements of the crime of conviction but the court will affirm because the issue was not preserved. This raises two questions: How we distinguish these two classes of cases; and why do we draw this distinction? Section IV addresses these two unanswered questions in F.B. First, assuming the a-crime-was-committed test is the proper test for fundamental error, how do we apply this test in practice? Does a-crime include, as Monroe said, any-crime-whatsoever? If not, what does it include? As to why we draw the distinction, the only possibly viable reason given in F.B. is the curethe- deficiency logic. But, as just noted, this is not a valid reason as long as Rule 3.380(c) allows sufficiency issues to be initially raised post-verdict. No Florida court has addressed this latter argument. Further, the a-crime-was-committed test is not related to the cure-thedeficiency logic that is said to justify it. Whether the evidence proved that a[nother]-crime-was-committed tells us nothing about whether, as to the crime of conviction, the State could have cured-the-deficiency if the unpreserved sufficiency issue had been raised during trial. Section IV also summarizes the Florida cases that have recognized that some unpreserved issues in criminal appeals-including sufficiency issuescan be addressed as IAOC claims on direct appeal. This body of case law raises a third unanswered question: If trial counsel's failure to raise a valid sufficiency issue under Rule 3.380(c) constitutes clear IAOC that can be remedied on direct appeal, why do we even bother with this fundamental error analysis? Section V briefly summarizes the case law from other jurisdictions. Even without a provision like Rule 3.380(c), the overwhelming majority of other jurisdictions allow unpreserved sufficiency issues to be raised on direct appeal. The article concludes that there is no reason to use the F.B. fundamental error analysis. A valid-but-unpreserved sufficiency issue will always be fundamental error because the failure to preserve the issue violated the defendant's fundamental right to effective assistance of counsel. The Florida Supreme Court should recede from F.B. and allow all unpreserved sufficiency issues in criminal cases to be addressed on direct appeal.

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