Tony Musto, Professor of Professional Skills, was cited in a recent opinion by the First District Court of Appeals J.B., Mother Of: D.L., Minor Child v. Department of Children and Families, Case No. 1D13-4346:
"Therefore, it would appear that a new procedural mechanism is required. One commentator has suggested the adoption of a rule similar to Florida Rule of Criminal Procedure 3.800(b)(2), which permits a defendant to file a motion to correct sentencing error in the trial court at any time before the filing of the defendant's initial brief on appeal. Anthony C. Musto, Potato, Potahto: Whether Ineffective Assistance or Due Process, an Effective Rule is Overdue in Termination of Parental Rights Cases in Florida, 21 St. Thomas L. Rev. 231, 249-50 (2009). If such a rule was adopted in termination proceedings, it would allow the parent's appellate counsel to file a motion alleging ineffective assistance of counsel in the trial court before the filing of the initial brief on appeal. This would give the trial court an opportunity to rule on the motion and conduct an evidentiary hearing, if necessary, thereby creating a sufficient record for appellate review. Since rulemaking is not this court's constitutional prerogative, we urge our supreme court to address this important matter through the exercise of its rulemaking power."