PEDRO ALVARADO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Pedro Alvarado appealed the denial of his post-conviction relief motion challenging his convictions and sentences for first degree murder and related offenses. The court affirmed the denial of his ineffective trial counsel claim but reversed on his ineffective appellate counsel claim, finding that appellate counsel failed to raise a valid double jeopardy issue regarding cumulative sentences.
The court affirmed the denial of the ineffective trial counsel claim as lacking merit. However, the court found appellate counsel rendered ineffective assistance by failing to raise a valid double jeopardy challenge to the sentences for improper exhibition of a dangerous weapon and possession of a firearm during the commission of a felony, which impermissibly multiplied punishment given the other convictions.
[1] A defendant's claim of ineffective assistance of trial counsel is evaluated under the standards set forth in Strickland v. …
[2] Appellate counsel renders ineffective assistance when failing to raise a double jeopardy claim that would have resulted in relief.
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Join FLexlaw to unlock all legal intelligence“the sentences for improper exhibition of a dangerous weapon and possession of a firearm during the commission of a felony impermissibly subjected defendant to double jeopardy when the convictions for first degree murder, armed burglary of an occupied dwelling with a firearm, and attempted armed robbery with a firearm are taken into account.”
Establishes the double jeopardy violation that appellate counsel failed to raise
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Join FLexlaw to unlock all legal intelligenceAlvarado was convicted of first degree murder with a firearm, armed burglary of an occupied dwelling, attempted armed robbery of a dwelling with a fir…
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PER CURIAM.
Defendant appeals the denial of his motion for post-conviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We affirm in part and reverse in part.
Defendant was convicted and sentenced for first degree murder with a firearm, armed burglary of an occupied dwelling, attempted armed robbery of a dwelling with a firearm, improper exhibition of a dangerous weapon and possession of a firearm during the commission of a felony. The convictions and sentences were affirmed on appeal. Alvarado v. State, 521 So. 2d 180 (Fla. 3d DCA 1988). Defendant then filed a motion for post-conviction relief, arguing that his convictions and sentences should be reversed because both his trial counsel and his appellate counsel had rendered ineffective assistance.
The first contention, that defendant’s trial counsel was ineffective, lacks merit. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Knight v. State, 394 So. 2d 997 (Fla.1981); State v. Stirrup, 469 So. 2d 845 (Fla. 3d DCA 1985). We affirm the denial insofar as the denial was predicated on that ground.
Defendant’s second assertion, that his appellate counsel was ineffective, has merit. The state correctly concedes that the sentences for improper exhibition of a dangerous weapon and possession of a firearm during the commission of a felony imper-missibly subjected defendant to double jeopardy when the convictions for first degree murder, armed burglary of an occupied dwelling with a firearm, and attempted armed robbery with a firearm are taken into account. Hall v. State, 517 So. 2d 678 (Fla.1988); Carawan v. State, 515 So. 2d 161 (Fla.1987).1 Appellate counsel rendered ineffective assistance in failing to raise the issue and defendant was prejudiced by the failure. Smith v. State, 400 So. 2d 956 (Fla.1981). We treat the appeal of the denial of the motion for post-conviction relief on this issue as a petition for writ of habeas corpus, grant the petition, reverse the sentence, and remand for re-sentencing.
Affirmed in part, reversed in part, and remanded.
. Alvarado's appeal was pending when the Florida Supreme Court opinions in Hall and Cara-wan were issued,
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- Smith v. State, 400 So. 2d 956 (Fla. 1981)
- State v. Delmer Stirrup, 469 So. 2d 845 (Fla. 3d DCA 1985)
- Alvarado v. State, 521 So. 2d 180 (Fla. 3d DCA 1988)