“I’ll Just Appeal It Later”: The Myth of the Safety Net

By: John Guidry

Many folks familiar with the criminal “justice” system are under the mistaken impression that, should something go wrong with their case, they can always appeal the issue later.

There is a sliver of truth to that. But I wouldn’t want to get anyone’s hopes up that an appeal somehow fixes the injustice suffered. It usually doesn’t work that way. Appellate courts are not “do-over” courts. They are courts of review, and they are obsessed with rules—specifically, the rule that if your lawyer didn’t complain about it at trial, you can’t complain about it on appeal.

To prove this, let’s look at the case of Jenkins v. State, 747 So. 2d 997 (Fla. 5th DCA 1999), involving the brilliant Judge Charles Harris.

Did your previous lawyer miss a critical defense?

You may have a claim for Ineffective Assistance. Call John today at (407) 423-1117.

The Case: Can You “Carry” a Car?

Here is the USA Today version of the facts:

• The Crime: Jenkins snatched a purse while riding as a passenger in a car.
• The Charge: Robbery with a Weapon.
• The Enhancement: In Florida, robbery becomes a first-degree felony if the offender “carried a weapon” during the crime.
• The “Weapon”: The State argued that the car was the weapon Jenkins was “carrying.”

The Absurdity: Common sense tells us that Jenkins did not “carry” the vehicle. The vehicle was his transportation. Unless Jenkins was an X-Men mutant with super strength, he wasn’t carrying that Buick. He was sitting inside it.

However, because the robbery was enhanced by this “weapon,” Jenkins received a 20-year prison sentence.

The Failure: Silence is Deadly

Jenkins appealed, hoping the higher court would correct this improper enhancement. He argued that, as a matter of law, a passenger cannot “carry” a car.

The Ruling: The majority of the appellate judges refused to even look at the issue. Why? Because Jenkins’ defense attorney didn’t argue it properly during the trial. Because the lawyer was silent then, the appellate court stayed silent now. They upheld the 20-year sentence on a technicality.

The Dissent: Judge Harris Fights for Logic

Judge Harris was furious. He wrote a dissent that every law student should read. He argued that the court’s role is to ensure justice, not just grade the lawyers’ homework.

“I believe our role on appeal is to be a court of justice charged with finding ‘the law’ and not a legal clinic committed to salve the wounded feelings of a trial court which is reversed because it was misled by an inappropriate argument or no argument at all.”

Judge Harris correctly noted that the ordinary meaning of “carry” does not include an automobile. Simply deciding the definition of the word “carry” would have reduced Jenkins’ sentence drastically. But because of procedure, the taxpayers are footed with the bill for a lengthy prison term.

John’s 2026 Update: How We Fix This Today (Rule 3.850)

Note: Jenkins is a horror story, but today we have a specific pathway to fix errors like this.

1. Ineffective Assistance of Counsel (IAC) In 2026, if a lawyer misses a “slam dunk” argument like the definition of “carry,” we don’t just rely on the direct appeal. We file a Rule 3.850 Motion for Post-Conviction Relief.

• We sue the previous lawyer (figuratively) within the criminal case.
• We argue: “But for the lawyer’s incompetence in failing to argue the statute, the result would have been different.”
• In Jenkins, this likely would have worked. A 20-year sentence based on an impossible physical act (carrying a car) is exactly what Rule 3.850 is designed to fix.

2. “Fundamental Error” We also argue that an illegal sentence is Fundamental Error.

• Florida law now recognizes that a sentence that exceeds the statutory maximum or is based on a non-existent crime can be corrected at any time, even if the lawyer didn’t object.
• If you are convicted of “Carrying a Car,” and that crime doesn’t exist in physics or law, we argue the conviction is void.

3. “Deadly Weapon” vs. “Carrying” Current case law clarifies that while a car can be used as a deadly weapon (assault with a deadly weapon), it cannot be carried for robbery enhancement purposes. This distinction is now well-settled, partly thanks to judges like Harris who spoke up.

Don’t Let a Mistake Define Your Sentence

If your trial lawyer missed a major issue, the fight isn’t over. You have strict time limits (usually 2 years) to file a Post-Conviction motion.

Call me at (407) 423-1117. Let’s review the transcript.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.