GONZALO DEQUESADA, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Dequesada seeks certiorari review of a circuit court order dismissing his appeal of a county court's denial of a petition for a writ of error coram nobis, which he filed after completing probation for a misdemeanor battery conviction and seeking relief based on ineffective assistance of counsel. The appellate court agrees the circuit court erred in dismissing the appeal on mootness grounds but denies certiorari because the underlying allegations of ineffective assistance are substantively insufficient.
The appellate court held that the circuit court erred in dismissing the appeal as moot because completion of probation does not render the issue of ineffective assistance of counsel moot when the ultimate relief sought could include expungement of the conviction from the criminal record. However, the court denied certiorari because the underlying allegations of ineffective assistance are substantively insufficient.
[1] A writ of error coram nobis is the appropriate procedural vehicle for a defendant no longer in custody to seek post-conviction relief.
[2] Fulfillment of probation terms does not render an issue of ineffective assistance of counsel moot, as proving such ineffectiveness may lead to expungement of the convicti…
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Join FLexlaw to unlock all legal intelligence“when a defendant who is no longer in custody seeks post-conviction relief, his remedy may be by way of a writ of error coram nobis”
Establishes that error coram nobis is the proper post-conviction remedy for those no longer incarcerated
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Join FLexlaw to unlock all legal intelligenceDequesada was convicted of misdemeanor battery in county court and successfully completed probation. After fulfilling his probation terms, he petition…
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PER CURIAM.
Gonzalo Dequesada petitions this court for a writ of certiorari regarding an order of the Pinellas County Circuit Court dismissing his appeal of an order of the Pinel-las County Court denying his petition for a writ of error coram nobis. We deny the petition.
After successfully completing the terms and conditions of probation imposed upon him for a misdemeanor battery conviction in the county court, Dequesada filed a petition for a writ of error coram nobis in the county court seeking relief from the conviction. He set forth several allegations in the petition concerning ineffective assistance of counsel at the pretrial and trial stages. In support of some of the allegations, he attached portions of the trial transcript and a few affidavits. Following a hearing on the petition, the county court rendered a bifurcated order denying it. Citing Weir v. State, 319 So. 2d 80 (Fla. 2d DCA 1975), the court decided in the first part of its order that when a defendant who is no longer in custody seeks post-conviction relief, his remedy may be by way of a writ of error coram nobis. However, in the second part of its order, it rejected the sufficiency of each of Dequesada’s allegations, holding that he had not carried his burden of proving ineffective assistance of counsel under the standards set forth in Knight v. State, 394 So. 2d 997 (Fla.1981), and Ford v. State, 407 So. 2d 907 (Fla.1981), so as to justify an evidentiary hearing.
A three-judge panel of the circuit court filed a per curiam order dismissing Deque-sada’s appeal of the county court’s order on the ground that, because Dequesada has fulfilled the terms and conditions of probation, the question of ineffective assistance of counsel has been rendered “moot.” It therefore did not address the question of whether the county court correctly rejected Dequesada’s allegations of ineffective assistance of counsel, as he had sought.
Dequesada subsequently submitted a petition for a writ of certiorari in this court.
We agree with Dequesada that the circuit court erroneously dismissed his appeal of the county court’s order. The county court correctly held that a petition for a writ of error coram nobis is the vehicle whereby a defendant who is no longer in-custody may seek post-conviction relief. See Weir. The fact that Dequesa-da has served the terms and conditions of probation does not render the issue of ineffective assistance of counsel “moot.” If ineffective assistance of counsel were proved, the conviction might ultimately be expunged from his criminal record, thereby eliminating the stigma of the conviction.
Even though the circuit court wrongfully dismissed Dequesada’s appeal, the granting of a writ of certiorari would be a pointless act. As the county court held, a review of Dequesada’s allegations of ineffective assistance of counsel, as well as a perusal of the attached affidavits and portions of the trial transcript which he submitted in support of some of the allega tions, shows that the allegations are substantively insufficient.
Accordingly, we deny Dequesada’s petition for a writ of certiorari.
CERTIORARI DENIED.
HOBSON, A.C.J., and BOARDMAN and RYDER, JJ., concur.
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Roan Peart v. State, 756 So. 2d 42 (Fla. 2000)…gersen rests. The Third District receded from Beckles in this en banc decision. Dugart reaches the conclusion that a claim for ineffective assistance of counsel exists on the basis of the exposure to deportation, citing simply to Dequesada v. State, 444 So. 2d 575 (Fla. 2d DCA 1984). Unfortunately, Dequesada has no analysis at all of this issue. In respect to the parts II and III of the majority opinion, I dissent. I would adopt Judge Shevin’s opinion, written on behalf of a unanimous en banc Third District:…
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Richardson v. State, 546 So. 2d 1037 (Fla. 1989)…50 and others must be brought under coram nobis. We believe the only currently viable use for the writ of error coram nobis is where the defendant is no longer in custody, thereby precluding the use of rule 3.850 as a remedy. See Dequesada v. State, 444 So. 2d 575, 576 (Fla. 2d DCA 1984); 28 Fla.Jur.2d Habeas Corpus § 158 (1981). For these reasons, we hold that all newly discovered evidence claims must be brought in a motion pursuant to Florida Rule of Criminal Procedure 3.850, and will not be cognizable in…
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Gino B. Vonia v. State, 680 So. 2d 438 (Fla. 2d DCA 1996)…is hard to make a distinction between a person attacking his conviction on Gideon grounds who is still in custody and one making the same attack who has already served his term.” Weir, 319 So. 2d at 81. [*439] We followed Weir in Dequesada v. State, 444 So. 2d 575 (Fla. 2d DCA 1984), where the defendant would have been able to seek post-eonviction relief on ineffective assistance grounds but for the fact that he was no longer in custody. At the time Weir and Dequesada were decided, the two-year time limit wit…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Weir v. State, 319 So. 2d 80 (Fla. 2d DCA 1975)
- Ford v. State, 407 So. 2d 907 (Fla. 1981)