JOSHUA N. ORNDORFF

v.

STATE OF FLORIDA

PER CURIAM.

The Court dismisses the petition alleging ineffective assistance of appellate counsel as untimely.

KELSEY and NORDBY, JJ., concur; B.L. THOMAS, J., concurs with opinion.

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

B.L. THOMAS, J., concurring.

On May 25, 2013, at approximately 8:30 p.m., Petitioner drove so fast that his vehicle became temporarily airborne. Just after this, Petitioner struck another vehicle occupied by a mother and her two young children. The mother’s vehicle rolled several times, and the force of the impact ejected her and her daughter. The mother was severely injured in the accident and was airlifted to a critical care facility. Witnesses to the crash and others stopped to help find the daughter. After some time, they found her in the nearby woods. The daughter died at the scene. It was later determined that she died after one of the impacts caused her cervical vertebrae to sever her spinal cord. The mother suffered critical brain injuries that had a high probability of leaving her with permanent injury and required extensive neurocognitive therapy and rehabilitation. When law enforcement and medical personnel arrived, Petitioner demonstrated erratic behavior, and officers reported a heavy smell of alcohol. Law enforcement took a blood draw from Petitioner at the time of the accident, which showed that Petitioner’s blood-alcohol content (BAC) was 0.238, nearly three times the legal limit. During the investigation, a bartender stated that Petitioner drank several beers and a shot of liquor before leaving. The State charged Petitioner with DUI manslaughter and DUI causing serious bodily injury.

At trial, a video of Petitioner was shown to the jury. The video showed Petitioner behaving erratically. The State also introduced an audio recording of Petitioner admitting that his vehicle’s front brakes were in poor condition. His front brake pads were completely gone, and his left-front brake was in his trunk. Petitioner knew that his vehicle was in this condition before the incident. The State also called a mechanic who testified that he examined Petitioner’s vehicle after the accident and verified the condition of the front brakes. The mechanic also testified that the rear brake pads were in poor condition. While the emergency brake was functional, the mechanic testified that, in his opinion, these maintenance issues rendered the vehicle unsafe to drive. Law enforcement officers testified they found no evidence that Petitioner tried to use either his main or emergency brakes before the impact.

At trial, Petitioner testified in his defense. He told the jury he had only lived in the area for about two months and was trying to get back home. He claimed that he tried to stop with his emergency brake after his normal brakes failed. Petitioner admitted that he consumed a significant amount of alcohol but denied that his high BAC was a factor in the accident.

The jury convicted Petitioner as charged.

The trial court sentenced him to 160 months in prison followed by 60 months of probation. On direct appeal, appellate counsel argued that the trial court erred by giving the jury the standard instruction regarding expert testimony in criminal cases. This Court per curiam affirmed his convictions and sentences on appeal and issued its mandate on October 25, 2017. Petitioner now asserts appellate counsel was ineffective for failing to argue that the trial court should have conducted a Nelson¹ or Faretta2 hearing, that the trial court gave misleading jury instructions, that his BAC tests were improperly admitted into evidence, that the State committed evidentiary violations,

that the trial court should have allowed him to proceed through veteran’s court, and that cumulative error occurred.

However, Petitioner failed to raise these claims in a timely manner. Florida Rule of Appellate Procedure 9.141(d)(5) states that a petition alleging ineffective assistance of appellate counsel on direct review “shall not be filed more than 2 years after the judgment and sentence become final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel.” Petitioner’s reliance on Kerney v. State is unpersuasive because that case is distinguishable. 217 So. 3d 138 (Fla. 3d DCA 2017).

In Kerney, the Third District held that appellate counsel misled the defendant when counsel led the defendant to believe that his claim was meritless and did not tell the defendant that he could request a written opinion. Here, Petitioner cannot show that appellate counsel’s alleged inactions amount to “actively misleading” him. Even if Kerney was not distinguishable, Petitioner admits that he hired postconviction counsel within the two-year period to pursue an ineffective assistance of appellate counsel claim, showing that he was aware of this option. Indeed, one of his arguments is that postconviction counsel failed to timely file a rule 9.141 claim against appellate counsel.

Moreover, rule 9.141(d)(5) does not allow for an extension based on counsel’s failure to timely file an ineffective assistance of appellate counsel claim.

Thus, Petitioner’s October 22, 2021, ineffective assistance of appellate counsel claim is untimely.

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Joshua N. Orndorff, pro se, Petitioner. Ashley Moody, Attorney General, Tallahassee, for Respondent.