JOHNNY LEE FUTCH, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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Futch petitioned for habeas corpus claiming his appellate counsel was ineffective for failing to raise certain trial errors on appeal. The court denied the petition, holding that the trial court lacked authority to consider such claims and that the alleged errors were either unsupported by the record or not properly preserved for appeal.
The court held that claims of ineffective assistance of appellate counsel must be raised by habeas corpus before the appellate court that affirmed the conviction, not in the trial court, which properly lacked authority to consider such claims. On the merits, the alleged errors either lacked factual support or were not properly preserved for appellate review.
[1] A claim of ineffective assistance of appellate counsel must be raised before the appellate court that affirmed the judgment of conviction.
[2] A trial court lacks authority to consider claims of ineffective assistance of appellate counsel.
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Join FLexlaw to unlock all legal intelligence“A claim of ineffective assistance of appellate counsel is properly raised by habe-as corpus before the appellate court which affirmed the judgment of conviction.”
Establishes the proper procedure for raising ineffective assistance of appellate counsel claims
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Join FLexlaw to unlock all legal intelligenceFutch was convicted and sentenced, and his judgment was affirmed on direct appeal in Futch v. State, 399 So.2d 533 (Fla.3d DCA 1981). He subsequently …
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PER CURIAM.
This is an appeal from a summary denial of a motion claiming ineffective assistance of appellate counsel in connection with the affirmance of the prisoner’s judgment and sentence. Futch v. State, 399 So. 2d 533 (Fla.3d DCA 1981).
A claim of ineffective assistance of appellate counsel is properly raised by habe-as corpus before the appellate court which affirmed the judgment of conviction. Knight v. State, 394 So. 2d 997, 999 (Fla.1981). Consequently, the trial court had no authority to consider the claims and properly denied the defendant’s motion. Knight v. State, supra. Because the record affirmatively demonstrates that the petitioner is confined to the state penitentiary at Rai-ford, we would not ordinarily have territorial jurisdiction of his application for habeas corpus. Art. V, § 4(b)(3), Fla.Const. Nonetheless, we find that the court, in Baggett v. Wainwright, 229 So. 2d 239 (Fla.1969), construing an identical provision of the 1968 constitution observed:
[WJhere habeas corpus relief is sought to vindicate deprivations of the right to appeal, or necessary incidents thereof, the ultimate relief afforded is the opportunity for full appellate review by way of habeas corpus in the district court of appeal (except in situations where the jurisdiction of an appeal lies in the Supreme Court pursuant to Section 4(2), Article V, State Constitution) of the district where petitioner was confined at the time of sentencing, the soundest and most expeditious procedure should require the application for a writ challenging such alleged deprivations to be filed in the same district court which is empowered to grant the ultimate relief. This procedure would not only operate to balance out and minimize the judicial labor in proceedings of this kind, but would also create less procedural difficulties. If factual determinations are deemed necessary, the appropriate district court needs merely to issue the writ returnable before a circuit judge of that district or appoint a commissioner to make the necessary factual determinations.
229 So. 2d at 244. We consider the above pronouncement sufficiently broad to properly invoke our jurisdiction.
Although the petitioner has appealed from the summary denial of his 3.850 motion, pursuant to Florida Rule of Appellate Procedure 9.040(c), we treat the present application as one for habeas corpus.
The petitioner sets forth three errors which he argues his appellate counsel should have presented to this court on appeal. First, the petitioner claims that the trial court erroneously permitted the jurors to separate without proper admonition. This contention is adequately dispelled by the record before us which indicates that the jurors were properly admonished each day. Futch next argues that the trial judge erred in failing to instruct on the lesser included offense of third degree murder and in not reinstructing the jury on excusable homicide. Neither of these errors were properly preserved for appellate review, Castor v. State, 365 So. 2d 701 (Fla.1978), and thus, there was no basis upon which appellate counsel could have sought reversal.
Consequently, we deny the petition for habeas corpus.
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Ragan v. Dugger, 544 So. 2d 1052 (Fla. 1st DCA 1989)…direct appeal. Smith v. State, 400 So. 2d 956 (Fla.1981). A claim of ineffective assistance of appellate counsel is not properly raised in a motion for relief pursuant to Rule 3.850. Irby v. State, 454 So. 2d 757 (Fla. 1st DCA 1984); Futch v. State, 420 So. 2d 905 (Fla. 3rd DCA 1982). Because Ragan does not seek relief pursuant to Rule 3.850, the jurisdictional time bar of that rule is not applicable to this case. We decline the state’s suggestion that a jurisdictional time limit be borrowed from the rules of…
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Gael O'Riorden v. State, 611 So. 2d 623 (Fla. 4th DCA 1993)…PER CURIAM. We grant the petition for writ of habeas corpus as petitioner claims and respondent agrees that petitioner received ineffective assistance of appellate counsel. Futch v. State, 420 So. 2d 905 (Fla. 3d DCA 1982). Petitioner’s appellate counsel failed to file a timely initial brief resulting in dismissal of his appeal. There is no question that this was below the norm of professionally acceptable standards of performance. See Baggett v. Wa…
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Rudolf Jan Schutter v. State, 429 So. 2d 853 (Fla. 4th DCA 1983)…his Court his Motion For Post-Conviction Relief Pursuant to Fla. R.Crim.P. 3.850 Based Upon Ineffective Assistance of Appellate Counsel. As authorized by Fla.R.App.P. 9.040(c) we treat this motion as an application for habeas corpus. Futch v. State, 420 So. 2d 905 (Fla. 3d DCA 1982). Upon review and full consideration we are of the opinion that Schutter has failed to establish any grounds for relief. Denied. LETTS, C.J., and ANSTEAD and WALDEN, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)
- Thomas v. State, 399 So. 2d 533 (Fla. 1st DCA 1981)