DANIEL WALDEN WARREN, PETITIONER,
v.
LOUIE L. WAINWRIGHT, AS DIRECTOR OF THE DEPARTMENT OF CORRECTIONS AND OFFENDER REHABILITATION, RESPONDENT
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Habeas corpus petition denied where petitioner failed to demonstrate ineffective assistance of appellate counsel because the statute of limitations issue was meritless and any absence during jury questioning caused no prejudice.
Appellate counsel is not ineffective for failing to raise meritless claims, and petitioner failed to show prejudice from any absence during jury deliberations.
[1] Appellate counsel is not required to raise on appeal points that are clearly without merit.
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Join FLexlaw to unlock all legal intelligencePetitioner was prosecuted for a crime shortly after the offense by arrest warrant, and the trial court answered a jury question during deliberations.…
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PER CURIAM.
By his petition for writ of habeas corpus the petitioner alleges incompetency of his appellate counsel based upon said counsel’s failure to allege as error denial of the petitioner’s motion to dismiss on the grounds that the statute of limitations had run and to allege error in the petitioner not being present while the trial court answered a jury question during deliberations.
The record on appeal reveals that the prosecution in this cause was commenced shortly after the offense (and well within the statute of limitations) by issuance of an arrest warrant and delivery for execution, thereby tolling the statute of limitations. See Sturdivan v. State, 419 So. 2d 300 (Fla.1982); Rubin v. State, 390 So. 2d 322 (Fla.1980). This issue was fully litigated in the trial court and appellate counsel are not required to raise points on appeal which are clearly without merit.
The record also reveals that the trial court, before answering the jury’s question during deliberation, recognized the necessity of having the defendant (petitioner herein) present and there is no indication in the record that he was not brought present. Furthermore, petitioner’s counsel was present, and the petitioner has failed to show he was in any way prejudiced if he were in fact, not present. See Hitchcock v. State, 413 So. 2d 741 (Fla.1982). Therefore, the petitioner has failed to meet the threshold burden necessary to prove ineffective assistance of appellate counsel and the petition for writ of habeas corpus be and it is hereby denied.
Denied.
DANIEL S. PEARSON, Judge,
concurring.
I fully concur as to the first issue and, for the reasons stated by me in Morgan v. State, 471 So. 2d 1336, 1338 (Fla. 3d DCA 1985) (Pearson, Daniel S., J., concurring), concur in the result only as to the second issue.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Fields, 505 So. 2d 1336 (Fla. 1987)…f the information had been filed immediately before the expiration of limitations period or if Fields had been served before the statute of limitations ran. We approve the opinion of the district court of appeal. We disapprove Warren v. Wainwright, 483 So. 2d 820 (Fla. 3d DCA 1986), and State v. Chacon, 479 So. 2d 229 (Fla. 3d DCA 1985), to the extent that they rely upon Sturdivan for an interpretation of section 775.15(5). It is so ordered. MCDONALD, C.J., and OVERTON, EHRLICH, SHAW, BARKETT and KOGAN, JJ…
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State v. Fields, 502 So. 2d 5 (Fla. 4th DCA 1986)…expressed in section 775.15(5) regarding execution of a warrant without unreasonable delay. We therefore conclude that the rule enunciated in Sturdivan and Ro-sengarten is not applicable to the present case. Two recent cases, Warren v. Wainwright, 483 So. 2d 820 (Fla. 3d DCA 1986), and State v. Chacon, 479 So. 2d 229 (Fla. 3d DCA 1985), appear to be in conflict with that which we now hold. They also rely on the statement in Sturdivan, however, that mere issuance and delivery for execution of an arrest warra…
Authorities Cited
- Hitchcock v. State, 413 So. 2d 741 (Fla. 1982)
- Murray Rubin v. State, 390 So. 2d 322 (Fla. 1980)
- Sturdivan v. State, 419 So. 2d 300 (Fla. 1982)
- Morgan v. State, 471 So. 2d 1336 (Fla. 3d DCA 1985)