BENJAMIN MOOREHEAD, PETITIONER,
v.
HARRY SINGLETARY, SECRETARY OF FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT
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Moorehead sought habeas corpus relief based on ineffective assistance of appellate counsel. The state conceded that appellate counsel failed to raise a meritorious double jeopardy argument regarding one conviction, and the court granted relief by vacating that conviction while affirming the remainder of the sentence.
The court granted habeas corpus relief in part, holding that appellate counsel was constitutionally deficient in failing to raise the double jeopardy point, which was entirely meritorious. The conviction and sentence on count 14 were reversed and vacated, but resentencing was not necessary because the reversal did not impact the sentencing guidelines upward departure sentence.
[1] A writ of habeas corpus may be granted to correct a constitutional error resulting from ineffective assistance of appellate counsel.
[2] Ineffective assistance of appellate counsel is established when counsel fails to raise a meritorious double jeopardy claim.
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Join FLexlaw to unlock all legal intelligence“appellate counsel was constitutionally deficient in failing to raise the point that petitioner's conviction on count 14 of the information [unlawful possession of a firearm while engaged in a criminal offense] was barred by double jeopardy”
Establishes the constitutional error that forms the basis for habeas corpus relief
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Join FLexlaw to unlock all legal intelligenceMoorehead was convicted on multiple counts, including count 14 for unlawful possession of a firearm while engaged in a criminal offense. After the cou…
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PER CURIAM.
Upon the state’s confession of error which we think is well taken, we grant, in part, the petitioner Benjamin Moorehead’s original petition for a writ of habeas corpus based on a claim of ineffective assistance of appellate counsel — following our affirmance of petitioner’s multiple criminal convictions and sentences. Moorehead v. State, 597 So. 2d 841 (Fla. 3d DCA), rev. denied, 606 So. 2d 1165 (Fla.1992).
The state concedes, and we agree, that appellate counsel was constitutionally deficient in failing to raise the point that petitioner’s conviction on count 14 of the information [unlawful possession of a firearm while engaged in a criminal offense] was barred by double jeopardy. The point should have been raised on the prior appeal and, if it had, it would have been successful as it was entirely meritorious, Cleveland v. State, 587 So. 2d 1145 (Fla.1991); habeas corpus lies in this court to correct this constitutional error. Monzon v. Singletary, 619 So. 2d 527 (Fla. 3d DCA 1993).
Accordingly, we grant, in part, the petitioner’s petition for a writ of habeas corpus, reverse the petitioner’s conviction and sentence on count 14 of the information, and remand the cause to the trial court with directions to vacate the petitioner’s conviction and sentence on count 14 of the information and to discharge the petitioner therefrom; it will not be necessary, however, to resentence the petitioner on his remaining convictions because the reversal on count 14 of the information has no impact on the sentencing guidelines upward departure sentence imposed in this case. In all other respects, the petition for a writ of habeas corpus is denied.
Petition denied in part; petition granted in part and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)
- Moorehead v. State, 597 So. 2d 841 (Fla. 3d DCA 1992)
- Monzon v. Singletary, 619 So. 2d 527 (Fla. 3d DCA 1993)