Utah Court of Appeals
When can defendants obtain rule 23B remands for ineffective assistance claims? State v. Florez Explained
Summary
An elderly woman discovered Lorenzo Florez at her back door attempting to pick the lock with a wire. A jury convicted Florez of attempted burglary and criminal trespass. Florez appeals, arguing insufficient evidence of burglarious intent and improper denial of a lesser-included offense instruction, while also moving under rule 23B to supplement the record regarding ineffective assistance of counsel for failing to investigate key witnesses.
Analysis
The Utah Court of Appeals decision in State v. Florez demonstrates the circumstances under which defendants can successfully obtain rule 23B remands to supplement the record for ineffective assistance of counsel claims. The case also provides important guidance on sufficiency of evidence standards and preservation requirements for lesser-included offense instructions.
Background and Facts
A 92-year-old widow discovered Lorenzo Florez at her back door attempting to pick the lock with a wire broken from her sprinkler system. Despite being confronted by the victim and her neighbor, Florez persisted in his efforts until police arrived. The State charged Florez with attempted burglary (third-degree felony) and criminal trespass (misdemeanor), among other offenses. At trial, Florez’s counsel attempted to introduce evidence of other similar incidents that morning but was prevented by hearsay objections. The jury convicted on all counts.
Key Legal Issues
The court addressed three main issues: (1) whether sufficient evidence supported the attempted burglary conviction, specifically regarding burglarious intent; (2) whether the trial court erred in denying a lesser-included offense instruction for criminal trespass; and (3) whether defendant’s rule 23B motion for remand should be granted to develop an ineffective assistance claim.
Court’s Analysis and Holding
The court affirmed the directed verdict denial, finding sufficient circumstantial evidence of burglarious intent despite the case’s weaknesses. The court noted that Florez used a makeshift tool, persisted after confrontation, and chose the back door rather than front door. Regarding the lesser-included offense instruction, the court found the issue unpreserved because counsel failed to articulate during the jury instruction conference how the evidence could support conviction for trespass while acquitting on attempted burglary.
However, the court granted the rule 23B motion, finding that newly discovered witness testimony about Florez entering other homes that morning asking about “the feds” could support both prongs of the Strickland test. The evidence could demonstrate deficient performance and prejudice, as it would have supported the defense theory and potentially justified a lesser-included offense instruction.
Practice Implications
This decision emphasizes the importance of thorough witness investigation in criminal defense cases. For rule 23B motions, practitioners must present non-speculative factual allegations not in the existing record that could support both deficient performance and prejudice under Strickland. The case also highlights preservation requirements—when seeking jury instructions, counsel must clearly articulate the evidentiary basis for the requested instruction during the appropriate conference, not merely during closing argument.
Case Details
Case Name
State v. Florez
Citation
2020 UT App 76
Court
Utah Court of Appeals
Case Number
No. 20180827-CA
Date Decided
May 14, 2020
Outcome
Affirmed in part and Remanded
Holding
The trial court properly denied the directed verdict motion on attempted burglary and the lesser-included offense instruction request, but defendant’s rule 23B motion for remand to supplement the record regarding ineffective assistance of counsel was granted.
Standard of Review
When reviewing denial of a directed verdict motion, the court upholds the trial court’s decision if some evidence exists from which a reasonable jury could find the elements proven beyond a reasonable doubt. A trial court’s refusal to grant a lesser-included offense instruction is reviewed for correctness.
Practice Tip
When seeking lesser-included offense instructions, clearly articulate to the trial court the specific evidentiary basis that would support conviction on the lesser offense while acquitting on the greater offense—failure to do so during jury instruction conferences may result in unpreserved appellate claims.
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