JAMES THOMPSON, APPELLANT,
v.
JERRY C. WADE, SUPERINTENDENT UNION CORRECTIONAL INSTITUTION, APPELLEE
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James Thompson sought habeas corpus relief on grounds that his appellate counsel was ineffective for failing to challenge the trial court's retention of jurisdiction over his sentence. The court denied the petition, holding that appellate counsel's performance must be evaluated under the law in effect at the time of appeal, not in hindsight.
Appellate counsel was not ineffective because at the time of Thompson's direct appeal in May 1984, the law in the First District required that challenges to the adequacy of reasons for retaining jurisdiction be properly preserved by objection at trial. Counsel cannot be deemed ineffective for failing to anticipate a later change in law by the Florida Supreme Court.
[1] Appellate counsel is not ineffective for failing to present an issue that was not fundamental error or properly preserved for appeal at the time of the appeal.
[2] Appellate counsel's performance is measured by the law in effect at the time of the appeal, not by subsequent changes in the law.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In order to show entitlement to relief, a claim of ineffective assistance of appellate counsel must identify counsel's omission with particularity, must show that it was a substantial and serious deficiency measurably below that of competent counsel, and must show the deficiency affected the outcome of the proceedings.”
Establishes the three-part test for ineffective appellate counsel claims
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Join FLexlaw to unlock all legal intelligenceIn 1982, Thompson was convicted by jury of two counts of armed robbery and pleaded guilty to two additional robbery charges, receiving a total sentenc…
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PER CURIAM.
James Thompson petitions this court for a writ of habeas corpus, alleging that his appellate counsel was ineffective. We have jurisdiction, Knight v. State, 394 So. 2d 997 (Fla.1981). For the following reasons, we deny the petition.
In 1982 a jury found Thompson guilty of two counts of armed robbery and he also pleaded guilty to two robbery charges. He was sentenced on these charges to a total of 120 years imprisonment and the trial judge retained jurisdiction over one-third of the sentence pursuant to section 947.16, Florida Statutes (1981). In his direct ap peal, counsel argued that there was error in the trial court’s denial of a motion to suppress, and no mention was made of the retention of jurisdiction. The appeals of Thompson and his two co-defendants, Ed-gecombe and Ragan, were consolidated and the judgments and sentences were affirmed without opinion. Edgecombe v. State, 455 So. 2d 1034 (Fla. 1st DCA1984).
Thompson’s petition to this court contends that his appellate counsel was ineffective in failing to argue that the trial judge’s retention of jurisdiction over his sentence did not satisfy the statutory requirement that the reasons for such retention be stated with sufficient particularity. Abbott v. State, 421 So. 2d 24 (Fla. 1st DCA1982).
Petitioner does not allege that trial counsel made any objection to the retention of jurisdiction or the reasons given therefor. In order to show entitlement to relief, a claim of ineffective assistance of appellate counsel must identify counsel's omission with particularity, must show that it was a substantial and serious deficiency measurably below that of competent counsel, and must show the deficiency affected the outcome of the proceedings. Knight, 394 So. 2d at 1001. Appellate counsel, however, is not ineffective in failing to present an issue which is neither fundamental error nor properly preserved for appeal. McKinney v. Wainwright, 458 So. 2d 1149 (Fla. 1st DCA1984).
The initial brief on behalf of Mr. Thompson in his direct appeal was filed on May 1, 1984. At that time, this court was of the view that the adequacy of reasons for retaining jurisdiction over sentence was only cognizable on direct appeal if properly preserved by objection. See Cofield v. State, 453 So. 2d 409 (Fla. 1st DCA1984); Snow v. State, 443 So. 2d 1074 (Fla. 1st DCA1984); Sawyer v. State, 401 So. 2d 939 (Fla. 1st DCA1981).
Subsequently, the Supreme Court of Florida resolved an inter-district conflict and overruled this court’s Sawyer decision and its progeny in Walker v. State, 462 So. 2d 452 (Fla.1985).
It is clear, however, that at the time Thompson’s initial brief was filed in his direct appeal, Sawyer, Cofield and Snow were the law in this district and the court would not have considered the retention of jurisdiction issue on the ground that it was not properly preserved for appeal. Appellate counsel’s performance must be measured in terms of the law in effect at the time of the appeal, and not in hindsight. Appellate counsel is not ineffective for failing to anticipate a change in law. Knight, 394 So. 2d at 1002-03. We therefore conclude that Thompson’s counsel was not ineffective for failing to present this issue in the direct appeal, and we deny the petition for writ of habeas corpus.
In reaching this result, we are aware that it is inconsistent with the disposition of a similar petition filed by Thompson’s co-defendant in Ragan v. Dugger, 544 So. 2d 1052 (Fla. 1st DCA1989). The narrow basis on which we deny relief here, however, was not raised by respondent in the Ragan proceeding nor did the court identify it at that time on its own, as we did in this case.
Because this issue was not cognizable in Thompson’s direct appeal at the time of that appeal, Thompson may seek relief in the trial court pursuant to Florida Rule of Criminal Procedure 3.800, see Adams v. State, 462 So. 2d 884 (Fla. 2d DCA1985).
PETITION FOR WRIT OF HABEAS CORPUS DENIED.
JOANOS, C.J., and KAHN and WEBSTER, JJ., concur.
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Derrik R. Sanders v. Singletary, 707 So. 2d 364 (Fla. 1st DCA 1998)…058 (Fla. 1st DCA 1989). Petitioner argues appellate counsel was ineffective in failing to present this argument on direct appeal. The effectiveness of counsel must be measured by the law in effect at the time the brief was filed. Thompson v. Wade, 603 So. 2d 28 (Fla. 1st DCA 1992). At the time in question, the law in this district was that a double jeopardy claim is not cognizable on direct appeal unless the issue has been properly preserved in the trial court. Graham v. State, 631 So. 2d 388 (Fla. 1st DCA…
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Jackson v. State, 855 So. 2d 1153 (Fla. 1st DCA 2003)…and its progeny. However, the initial brief in this cause was filed more than twelve months before issuance of the opinion in Mondesir and we are unable to conclude that appellate counsel was ineffective in these circumstances. See Thompson v. Wade, 603 So. 2d 28 (Fla. 1st DCA 1992) (effectiveness of appellate counsel must be measured by the law in effect at the time of the filing of the initial brief). We therefore deny the petition alleging ineffective assistance of appellate counsel, but do so without p…
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Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Bennie Lee Walker v. State, 462 So. 2d 452 (Fla. 1985)
- Muldrow v. Starr, 401 So. 2d 939 (Fla. 1st DCA 1981)
- Cofield v. State, 453 So. 2d 409 (Fla. 1st DCA 1984)
- Abbott v. State, 421 So. 2d 24 (Fla. 1st DCA 1982)
- Ragan v. Dugger, 544 So. 2d 1052 (Fla. 1st DCA 1989)
- McKINNEY v. Louie L. Wainwright, 458 So. 2d 1149 (Fla. 1st DCA 1984)
- Adams v. State, 462 So. 2d 884 (Fla. 2d DCA 1985)
- Snow v. State, 443 So. 2d 1074 (Fla. 1st DCA 1984)
- State v. Stewartson, 443 So. 2d 1074 (Fla. 5th DCA 1984)