WARREN WALTER CLARK, PETITIONER,
v.
STATE OF FLORIDA, ET AL., RESPONDENTS
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Clark seeks habeas corpus relief claiming ineffective assistance of appellate counsel because his lawyer filed an Anders brief without raising an alleged double jeopardy violation. The court denies the petition, holding that appellate counsel was not ineffective because the court sua sponte considered and rejected the double jeopardy claim based on controlling precedent at the time, and subsequent legislative amendments clarified the permissibility of multiple convictions for crimes arising from a single act.
The court denies the petition, finding that appellate counsel was not ineffective because the court sua sponte raised and considered the double jeopardy issue on appeal and properly rejected it based on controlling law at that time. Subsequently enacted legislation and case law clarify that multiple convictions may arise from a single act when the crimes constitute distinct offenses.
[1] An appellate court may sua sponte raise and consider issues not raised by counsel, including double jeopardy.
[2] A change in the law that occurs after a conviction and appeal is generally not applicable to prior convictions unless specifically made retroactive.
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Join FLexlaw to unlock all legal intelligence“the records of this court reveal that this court sua sponte raised and considered the double jeopardy issue and, based upon law current at the time, decided against petitioner”
Establishes that the appellate court independently considered the double jeopardy claim even though counsel did not raise it, undermining the ineffectiveness claim
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Join FLexlaw to unlock all legal intelligenceClark was convicted of attempted murder, shooting into an occupied building, and being a person engaged in a criminal offense with a weapon. Clark fir…
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DAUKSCH, Judge.
Petitioner seeks our writ of habeas corpus 1 alleging he suffered ineffective assistance of appellate counsel when his lawyer filed an Anders2 brief in this court and failed to raise an alleged double jeopardy violation. We deny the writ.
When the court-appointed appellate counsel filed his brief he said, pursuant to An-ders, that he could find nothing to appeal about and asked to be allowed to withdraw as counsel. He said that the only basis upon which petitioner sought a judgment of acquittal, as a matter of law from the trial court, was the alleged lack of proof of premeditated design. No double jeopardy issue had been raised below. That notwithstanding, the records of this court reveal that this court sua sponte raised and considered the double jeopardy issue and, based upon law current at the time, decided against petitioner. See Vause v. State, 476 So. 2d 141 (Fla.1985) and State v. Rodriquez, 500 So. 2d 120 (Fla.1986).
After this petitioner’s case was decided on plenary appeal our Supreme Court made its decision in Carawan v. State, 515 So. 2d 161 (Fla.1987) which would have affected this petitioner had it been the law when his appeal was considered. Carawan was not the law then and it is not the law now because the legislature has amended section 775.021(4) to permit multiple convictions for crimes arising out of a “single evil.” In this case petitioner shot a single shot and was convicted and sentenced for attempted murder one,3 shooting into an occupied building4 and being a person engaged in a criminal offense with a weapon.5
Nothing in Carawan makes it applicable to this case now, in our opinion, because it was not specifically retroactive to prior convictions, did not mention Vause which was directly on point and the legislature has spoken to make clear its intent in section 775.021(4), Florida Statutes. See Ch. 88.131, sec. 7 (FLW Session Law Rptr. July 4, 1988).6
PETITION DENIED.
DANIEL, J., concurs.
SHARP, C.J., concurs in result only.
. Johnson v. Wainwright, 463 So. 2d 207 (Fla. 1985); Knight v. State, 394 So. 2d 997 (Fla.1981).
. Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).
. §§ 782.04(l)(a)l, 777.04(4)(a), 775.087, Fla. Stat. . § 790.19, Fla.Stat. . § 790.07, Fla.Stat. .See also Marshall v. Dugger, 526 So. 2d 143 (Fla. 3d DCA 1988) (appellate counsel not ineffective for failing to anticipate a change in the law).
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Citator
Cited By (11 total)
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Wilkins v. State, 543 So. 2d 800 (Fla. 5th DCA 1989)…le of lenity.” The lenity analysis has been specifically repudiated by the Florida Legislature with the enactment of section 7, Chapter 88-131, Laws of Florida, now codified as section 775.021(4)(b), Florida Statutes (Supp.1988). See Clark v. State, 530 So. 2d 519 (Fla. 5th DCA 1988). Irrespective of either Chapter 775 or the United States Constitution as interpreted by Hunter, the Carawan dictum (endorsed by six members of the court) asserts that the Florida Constitution proscribes multiple punishments for…
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Bradley v. State, 540 So. 2d 185 (Fla. 5th DCA 1989)…ive intent, apparently died at the [*188] hands of the Florida legislature in the next session following Carawan. See Ch. 88-131, § 7, Laws of Florida. See also State v. Barritt, 531 So. 2d 338, 340 (Fla.1988) (Shaw, J., concurring); Clark v. State, 530 So. 2d 519 (Fla. 5th DCA 1988). Constitutional double jeopardy problems (if raised by Carawan) remain unanswered. . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).…
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Brown v. State, 538 So. 2d 116 (Fla. 5th DCA 1989)…d DCA 1988); Brown v. State, 529 So. 2d 1247 (Fla. 4th DCA 1988); Prescott v. State, 529 So. 2d 302 (Fla. 4th DCA 1988); Sapp v. State, 522 So. 2d 1006 (Fla. 4th DCA 1988). Contra, Teemer v. State, 531 So. 2d 748 (Fla. 5th DCA 1988); Clark v. State, 530 So. 2d 519 (Fla. 5th DCA 1988). See also Bogard v. State, 451 So. 2d 484 (Fla. 4th DCA 1984); Alvarez v. State, 445 So. 2d 677 (Fla. 4th DCA 1984) and Jackson v. State, 436 So. 2d 1101 (Fla. 4th DCA 1983). The point of citing Jackson, Bogard and Alvarez is…1 / 2
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Johnson v. Louie L. Wainwright, 463 So. 2d 207 (Fla. 1985)
- State v. Rodriquez, 500 So. 2d 120 (Fla. 1986)
- Vause v. State, 476 So. 2d 141 (Fla. 1985)
- Percival M. Marshall v. Dugger, 526 So. 2d 143 (Fla. 3d DCA 1988)