Thus, in the present context, IAOC claims focus on the possible reasons for counsel's failure to preserve the issue and, if there is no valid reason, the harm that error caused.
Judicial economy is not promoted if, on direct appeal, the appellate court affirms on an issue only because the issue was not preserved, but then later grants postconviction relief when the same issue reemerges as an IAOC claim, based on counsel's failure to preserve the issue.
1991), the court said an error was invited/waived because "counsel's request for the limited instruction was a tactical decision"; and a personal waiver by the defendant was not needed because this was not "a waiver of a fundamental right." But, given the facts in that case, the court seemed to feel that counsel's tactical decision was reasonable (or at least was not unreasonable on its face): Counsel "requested an abbreviated version of the standard instruction on excusable homicide"--which omitted parts "[irrelevant to the case"--because counsel wished "to tailor it to the defense [of accident]." (26) The court did not address the problem of error being invited/waived by a decision of counsel that was, for IAOC purposes, unreasonable.
If counsel does something during trial that, for IAOC purposes, is wholly unreasonable, it could be argued that this "tactical" decision will be invited error only if the defendant, after being informed of the legal options, agrees to it.
This, in essence, is identical to the IAOC paradigm, as is seen in the relevant cases.
The district court concluded IAOC occurred and reversed.
We may add a third question that was noted but not resolved in Monroe: Can we avoid the problems with this fundamental error test by reframing the issue as an IAOC claim?
As long as Rule 3.380(c) allows post-verdict acquittal motions, trial counsel's failure to raise a meritorious sufficiency issue under that rule will be IAOC. If relief is not granted on appeal, it will have to be granted in a post-conviction proceeding.
Neither justice nor judicial economy has an interest in affirming, on non-preservation grounds, convictions based on insufficient evidence, only to see the issue reemerge (as an IAOC claim) in post-conviction proceedings.
The defendant will have to choose between continuing with the appeal (hoping to convince the appellate court to address the unpreserved issue) or dismiss the appeal and go directly to a Rule 3.850 motion based on IAOC. But what if it is not clear whether the issue was preserved?
So again, the dilemma: Go forward with the direct appeal or dismiss and go directly to Rule 3.850 and the IAOC claim as to the life felony (which would mean giving up any challenges to the second count; and what if he has a good preserved sufficiency issue on that count?).
CAN UNPRESERVED SUFFICIENCY ISSUES BE RAISED AS IAOC CLAIMS?