WILLIE LEE MOORER JR.

v.

STATE OF FLORIDA

PER CURIAM.

Petitioner alleges his conviction was due to multiple evidentiary deficiencies and acts of fraud in the trial court that his appellate attorney should have raised in his direct appeal. He claims that “Appellate Counsel had a duty to bring [these matters] to this Honorable Court’s attention” such that “the outcome of the proceedings would have been different, and the Petitioner would have obtained relief from his unlawful predicament.” Based on a review of the record, Petitioner’s claims—which meet the pleading requirements of Rule 9.141(d), Fla. R. App. P.—are denied on the merits. See Topps v. State, 865 So. 2d 1253, 1258 (Fla. 2004) (explaining that a decision on an extraordinary writ petition that “clearly shows that the issue was considered by the court on the merits” is deemed a decision “which would later bar the litigant from presenting the issue under the doctrines of res judicata or collateral estoppel”). We note that the per curiam affirmance in Petitioner’s direct appeal on the basis of Anders does not necessarily foreclose each and every claim of ineffective appellate counsel; rather, an affirmance under Anders only extends to review of the limited class of claims that were “apparent on the face of the record” and thereby “necessarily considered by the court in its Anders review.” Towbridge v. State, 45 So. 3d 484, 487 (Fla. 1st DCA 2010).

MAKAR and JAY, JJ., concur; TANENBAUM, J., dissents with opinion. _____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

TANENBAUM, J., dissenting.

Willie Lee Moorer challenges the effectiveness of his appellate counsel. On its face, though, his petition is not cognizable in this court under Florida Rule of Appellate Procedure 9.141(d). I say this because Moorer’s only stated basis for relief is that appellate “counsel failed in their duty to expose the fraud that was practiced in the trial court.” He goes on to make factual allegations regarding the trial court proceedings, but none of those allegations has anything to do with the actual duties of appellate counsel in a criminal case.

There is one more reason the petition is not cognizable in this court: In the underlying appeal, Moorer’s counsel filed an Anders brief, and this court affirmed Moorer’s conviction and sentence. Cf. Towbridge v. State, 45 So. 3d 484, 487 (Fla. 1st DCA 2010) (rejecting as a matter of law a claim of ineffective assistance of appellate counsel, explaining that one reasonably can “presume that when the court affirms an Anders appeal it has fully considered and rejected all potential issues that were apparent on the face of the record”); cf. In re Anders Briefs, 581 So. 2d 149, 151 (Fla. 1991) (explaining that once an Anders brief is filed, the district court “assumes the responsibility of conducting a full and independent review of the record to discover any arguable issues apparent on the face of the record” (citing Anders v. California, 386 U.S. 738, 744 (1967)).

The majority’s characterization of its denial of the petition as one on the merits, then, is not accurate. There has been no consideration of the merits of Moorer’s fraud claim or whether appellate counsel should have raised it. Really, how could there be? The claim raises collateral fact questions about the trial court proceedings that counsel could not have addressed in a direct appeal, and that we cannot address here. As an original petition claiming ineffective assistance of appellate counsel, the pleading is facially baseless.

Still, the majority purports to give preclusive effect to its disposition by slapping the “on the merits” label on its denial, but without truly reaching the merits of Moorer’s claim. In essence, the majority—unfairly and without justification—purports to deny Moorer his day in court on his collateral fraud claim, should he file one in a postconviction proceeding. We should not penalize Moorer for incorrectly bringing his claim here in the first instance. The right disposition is to dismiss the petition for Moorer’s failure to state a preliminary basis for relief.

_____________________________

Willie Lee Moorer Jr., pro se, Petitioner. Ashley Moody, Attorney General, Tallahassee, for Respondent.