FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2021-3718

_____________________________

AIRON DOUGLAS CARMACK,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for Escambia County.

Gary Lee Bergosh, Judge.

January 31, 2024

PER CURIAM.

Airon Douglas Carmack filed a “Petition for Review De Novo 

for Cumulative Error of the Lower Tribunal” in this Court. We 

construe the petition as an appeal of Carmack’s conviction and 

sentence for attempted first-degree murder. We can discern two 

claims made in the appeal: first, that trial counsel should have 

introduced the testimony of an alibi witness; and second, that the 

evidence was legally insufficient to support the conviction. We 

affirm.

Carmack’s claim that his counsel failed to introduce an alibi 

witness constitutes a claim of ineffective assistance of counsel, 

which cannot be raised on direct appeal unless the appellant 

demonstrates that fundamental error occurred. Steiger v. State, 
2

328 So. 3d 926, 932 (Fla. 2021). Fundamental error is error that 

“reach[es] down into the validity of the trial itself to the extent that 

a verdict of guilty could not have been obtained without the 

assistance of the alleged error.” Knight v. State, 286 So. 3d 147, 

151 (Fla. 2019) (quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 

1960)). To find fundamental error “we must consider whether 

counsel’s alleged failure to object or otherwise act was so egregious 

that the trial court should have intervened even without a 

prompting by an objection.” Ford v. State, 350 So. 3d 109, 113 (Fla. 

1st DCA 2022). With regard to failure to call an alibi witness, the 

court cannot assess the existence of fundamental error without 

knowing, beyond Carmack’s speculation, exactly what testimony 

the witness would have offered.* As such, Carmack has failed to 

demonstrate fundamental error.

Carmack makes other arguments about shortcomings in the 

evidence, but the appellate claim he seems to be making is that the 

evidence was insufficient to support the conviction. “[A]ll claims of 

legal sufficiency must be reviewed to determine ‘whether the State 

presented competent, substantial evidence to support the verdict.’” 

Jones v. State, 297 So. 3d 685, 687 (Fla. 1st DCA 2020) (quoting 

Bush v. State, 295 So. 3d 179, 200 (Fla. 2020)). The evidence must 

be viewed “in the light most favorable to the State and consider 

whether ‘a rational trier of fact could have found the existence of 

the elements of the crime beyond a reasonable doubt.’” Jones, 297 

So. 3d at 687. Applying this standard, the evidence was more than 

sufficient to support the conviction, in spite of Carmack’s 

irrelevant claims about the credibility of some of the evidence.

AFFIRMED. 

* It is for this reason that ineffective-assistance claims are 

made in a postconviction proceeding, where the defendant can 

introduce the testimony of the omitted witness and counsel can 

explain why the testimony was omitted. See, e.g., McKinney v. 

State, 579 So. 2d 80, 82 (Fla. 1991) (noting that “[t]he trial court is 

the more appropriate forum to present such claims where evidence 

might be necessary to explain why certain actions were taken or 

omitted by counsel.”).
3

B.L. THOMAS, WINOKUR, and LONG, JJ., concur.

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

Donovan L. Parker of the Law Offices of Donovan L. Parker, 

Pembroke Pines, for Appellant.

Ashley Moody, Attorney General, and Robert “Charlie” Lee, 

Assistant Attorney General, Tallahassee, for Appellee.