ALPHONSIA CANTY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alphonsia Canty appeals the denial of his second Rule 3.850 postconviction motion challenging his 100-year sentence for attempted first-degree premeditated murder. The court affirms the denial, finding that Canty's arguments are barred by the law of the case or are inapplicable to his conviction.
The court affirms the denial of Canty's Rule 3.850 motion. The claim that his sentence is illegal is barred by the law of the case from his first postconviction motion, and Gray is inapplicable because Canty was convicted of attempted premeditated murder, not attempted felony murder. Additionally, counsel's failure to raise a non-meritorious issue does not constitute ineffective assistance.
[1] A per curiam appellate decision, even without an opinion, establishes the law of the case on issues and facts that were raised or could have been raised.
[2] Failure to raise a nonmeritorious legal issue does not constitute ineffective assistance of counsel.
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Join FLexlaw to unlock all legal intelligence“A per curiam decision even without opinion establishes the law of the case on the same issue and facts which were raised, or which could have been raised.”
Establishes that Canty's claim regarding an illegal sentence was barred because it was raised and decided in his first postconviction motion.
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Join FLexlaw to unlock all legal intelligenceOn October 24, 1982, Canty, who was on parole from a 99-year sentence for armed robbery, attempted to murder an unarmed victim in Duval County by shoo…
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LAWRENCE, Judge.
Alphonsia Canty (Canty) appeals the denial of his second motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.
A jury found Canty guilty of attempted first-degree premeditated murder. Canty committed this crime on October 24,1982, in Duval County, while he was on parole from a ninety-nine year sentence for armed robbery. The trial judge sentenced Canty, an habitual felon, to one hundred years, reciting the fact that Canty shot his unarmed victim in the abdomen and, after the victim fell to the ground, stood over the victim and shot the victim in the head at point blank range. The judge retained jurisdiction for the first twenty-five years of Canty’s sentence. Canty’s direct appeal was affirmed per curiam. Canty v. State, 458 So. 2d 275 (Fla. 1st DCA 1984).
Canty filed the instant motion on October 1, 1997. The trial judge, in a January 8, 1998 order, summarily denied the motion. Canty argues that his sentence is illegal; he however admits on the face of his motion that he raised this issue in his first postconviction motion. See Canty v. State, 636 So. 2d 509 (Fla. 1st DCA 1994) (affirming per curiam) (table). This issue thus is barred by the law of the case: A per curiam decision even without opinion establishes the law of the case on the same issue and facts which were raised, or which could have been raised. White v. State, 651 So. 2d 726, 726 (Fla. 5th DCA 1995) (holding same), approved on other grounds, 666 So. 2d 895 (Fla. 1996).
Canty argues that his sentence is illegal under State v. Gray, 654 So. 2d 552 (Fla.1995) (holding that attempted felony murder is no longer a crime in Florida). Canty was convicted of attempted premeditated, rather than felony, murder; Gray thus is inapplicable to him. Canty argues that his lawyer was ineffective for failing to raise the Gray issue. The Florida Supreme Court however tells us that “counsel’s failure to raise a nonmeritorious issue is not ineffective assistance.” Chandler v. Dugger, 634 So. 2d 1066, 1068 (Fla.1994).
The trial judge correctly denied Canty’s rule 3.850 motion. We affirm the judge’s order. ERVIN and JOANOS, JJ., concur.
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Kenneth and Yvonne Pompi v. City OF Jacksonville, 872 So. 2d 931 (Fla. 1st DCA 2004)…law of the case is based on the appellate court’s decision, not its opinion. For this reason, the Florida courts have held that an appellate decision that is accompanied only by the statement, “Affirmed,” is the law of the case. See Canty v. State, 715 So. 2d 1033, 1033 (Fla. 1st DCA 1998); Comm’n on Ethics v. Sullivan, 430 So. 2d 928, 932 (Fla. 1st DCA 1983); New England Ins. Co. v. Int’l Bank of Miami N.A., 537 So. 2d 1025, 1025-1026 (Fla. 3d DCA 1988); Russell v. Florida Ranch Lands, Inc., 441 So. 2d 190,…
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Floriselva Silva v. U.S. Sec. Ins. Co., 734 So. 2d 429 (Fla. 3d DCA 1999)…judgment statute necessarily became the law of this case so as to foreclose any relitigation of this issue on remand. See Barrero v. Ocean Bank, 24 Fla. L. Weekly D446, D447, 729 So. 2d 412, 1999 WL 71766 (Fla. 3d DCA 1999); see also Canty v. State, 715 So. 2d 1033, 1033 (Fla. 1st DCA 1998); Sloane v. Sloane, 625 So. 2d 1236, 1237 (Fla. 4th DCA 1993); New England Ins. Co. v. International Bank of Miami, N.A., 537 So. 2d 1025, 1025-26 (Fla. 3d DCA 1988).2 This is so even where this court specifically was not as…
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Barrero v. Ocean Bank, 729 So. 2d 412 (Fla. 3d DCA 1999)…ior appeal of the final summary judgment. Our prior order finding the bank to be entitled to its appellate attorney’s fees and costs necessarily became the law of the case so as to preclude the relitigation of this issue.5 See [*415] Canty v. State, 715 So. 2d 1033, 1033 (Fla. 1st DCA 1998); Sloane v. Sloane, 625 So. 2d 1236, 1237 (Fla. 4th DCA 1993); New England Ins. Co. v. International Bank of Miami, N.A., 537 So. 2d 1025, 1025 (Fla. 3d DCA 1988). We therefore find no error with the trial court’s assessment…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- Chandler v. Dugger, 634 So. 2d 1066 (Fla. 1994)
- White v. State, 666 So. 2d 895 (Fla. 1996)
- White v. State, 651 So. 2d 726 (Fla. 5th DCA 1995)