ISIAH THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a claim of ineffective assistance of counsel for failing to preserve an issue regarding a peremptory challenge to a juror may warrant post-conviction relief.
[1] A claim that trial counsel was ineffective for failing to preserve an issue that could have resulted in reversal constitutes a preliminary basis for post-conviction relie…
[2] Hispanics are a cognizable class for purposes of a Neil inquiry regarding the discriminatory use of peremptory challenges.
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Join FLexlaw to unlock all legal intelligenceAppellant sought post-conviction relief, alleging his trial counsel was ineffective for failing to renew an objection to the State's use of a perempto…
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PER CURIAM.
Isiah Thomas appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We find that one of the claims he raised had merit and was not conclusively refuted by the trial court’s order of denial. We reverse and remand as to that claim only.
Appellant’s second claim for relief was that his trial counsel was ineffective in failing to renew his objection to the state’s use of a peremptory challenge to excuse a juror where the record indicates that the juror was Hispanic, precluding the point from being raised on direct appeal. That issue may have constituted reversible error under State v. Alen, 616 So. 2d 452 (Fla.1993) (recognizing Hispanics as cognizable class for purposes of Neil1 inquiry), and State v. Johans, 613 So. 2d 1319 (Fla.1993) (requiring Neil inquiry when objection that peremptory challenge is used in racially discriminatory manner is raised), were it not waived by defense counsel’s failure to object to the jury that was selected, Joiner v. State, 618 So. 2d 174, 176 (Fla.1993).
The allegation of failing to preserve an issue which, if well founded, could result in reversal, constitutes a preliminary basis for relief pursuant to rule 3.850. See Crumbley v. State, 661 So. 2d 383 (Fla. 1st DCA 1995) (reversing summary denial of rule 3.850 motion alleging ineffectiveness of trial counsel in failing to object to prosecutor’s reasons for peremptory challenge, which were not supported by record).
Accordingly, we reverse the summary denial as to this claim and remand for an evidentiary hearing or the attachment of record excerpts conclusively refuting this claim. As to all Appellant’s other claims for post-conviction relief advanced in the instant motion and Appellant’s addendum thereto, we find no error m the trial court’s summary denial and affirm.
Affirmed in part, reversed in part, and remanded.
FARMER, SHAHOOD and GROSS, JJ., concur. . State v. Neil, 457 So. 2d 481 (Fla. 1984).
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Carratelli v. State, 915 So. 2d 1256 (Fla. 4th DCA 2005)…oiner. Two cases from this court have required hearings on the postconviction relief claim that defense counsel failed to preserve objections pertaining to peremptory challenges. Dwyer v. State, 776 So. 2d 1082 (Fla. 4th DCA 2001); Thomas v. State, 700 So. 2d 407 (Fla. 4th DCA 1997). We recede from these cases to the extent that they suggest that postconviction relief is appropriate where the record does not demonstrate that an actually biased juror served on the jury. Where the record establishes that an ac…
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State v. Bouchard, 922 So. 2d 424 (Fla. 2d DCA 2006)…Van Loan and Bouchard I appear to be the only published cases addressing a motion for postconviction relief predicated upon a rule 3.400 violation. . Carratelli receded from Dwyer v. State, 776 So. 2d 1082 (Fla. 4th DCA 2001), and Thomas v. State, 700 So. 2d 407 (Fla. 4th DCA 1997), and certified conflict with Austing v. State, 804 So. 2d 603 (Fla. 5th DCA 2002). . Because the cited cases were direct appeals, they did not address the standards applicable to motions seeking postconviction relief. Additional…
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Mitchell v. State, 846 So. 2d 559 (Fla. 4th DCA 2003)…hing is attached to the order to indicate that there was anything in the record which might have alerted appellate counsel to such an issue. The ground is legally sufficient. See McGraw v. State, 796 So. 2d 1205 (Fla. 4th DCA 2001); Thomas v. State, 700 So. 2d 407, 408 (Fla. 4th DCA 1997). Appellant’s second ground alleged that on the last day of his trial, August 7, 1997, the presiding judge instructed the bailiff to lock the courtroom doors, and, as a consequence, Appellant’s family and friends were told t…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Neil, 457 So. 2d 481 (Fla. 1984)
- Joiner v. State, 618 So. 2d 174 (Fla. 1993)
- State v. Johans, 613 So. 2d 1319 (Fla. 1993)
- State v. Alen, 616 So. 2d 452 (Fla. 1993)
- Crumbley v. State, 661 So. 2d 383 (Fla. 1st DCA 1995)