PHILIP LEON A/K/A CARLOS HARDEN, PETITIONER,
v.
MICHAEL MOORE, SECRETARY OF FLORIDA DEPARTMENT OF CORRECTIONS, AND STATE OF FLORIDA, RESPONDENTS
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Philip Leon petitions for a writ of habeas corpus challenging his appellate counsel's effectiveness for failing to raise a hearsay objection to evidence of merchandise value at trial. The court denies the petition, holding that appellate counsel cannot be deemed ineffective for failing to assert a legal theory that was not established at the time of appeal.
Appellate counsel was not ineffective because the effectiveness of appellate counsel is judged as of the time of the appeal, and counsel cannot be deemed ineffective for failing to assert a legal theory that was not fully articulated or established in the law at that time.
[1] Appellate counsel's effectiveness is judged based on the state of the law at the time of the appeal, not on subsequent developments.
[2] Failure to raise a legal theory that was not fully articulated or established at the time of the appeal does not constitute ineffective assistance of appellate counsel.
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Join FLexlaw to unlock all legal intelligence“The effectiveness of appellate counsel is judged as of the time of the appeal.”
Establishes the temporal framework for evaluating appellate counsel ineffectiveness claims, looking backward from the time of appeal rather than forward with hindsight.
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Join FLexlaw to unlock all legal intelligenceLeon was charged with stealing merchandise and convicted of third-degree felony theft. At trial, a store employee testified as to the contents of a pr…
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On Motion for Rehearing
PER CURIAM.
On consideration of the petitioner’s motion for rehearing, we withdraw the ruling issued April 1, 1999, and substitute the following opinion.
Philip Leon, also known as Carlos Harden, petitions for a writ of habeas corpus, asserting that his appellate counsel was ineffective for failing to raise on direct appeal the claim that the evidence of the value of merchandise the defendant was charged with stealing was inadmissible hearsay. Petitioner urges that, had the objection been sustained, there would have been a failure of proof of the value of the merchandise, and that he would have been convicted only of a misdemeanor, instead of a third-degree felony. See § 812.014(2)(c),(3).
At the time of petitioner’s direct appeal, see Harden v. State, 718 So. 2d 1248 (Fla. 3d DCA 1998), the Fourth District had squarely held admissible the testimony of a store employee “as to the contents of a price tag that was affixed to an item of merchandise on the day appellant was accused of stealing the merchandise. In our view this testimony did not constitute hearsay as contemplated by the provisions of the Florida Evidence Code.... ” Watson v. State, 415 So. 2d 128 (Fla. 4th DCA 1982). See generally Scott v. State, 519 So. 2d 734 (Fla. 3d DCA 1988). The fact that the First District has recently come to a different conclusion on similar facts, see Lukaj v. State, 24 Fla. L. Weekly D621, 729 So. 2d 965 (Fla. 1st DCA 1999), is immaterial. The effectiveness of appellate counsel is judged as of the time of the appeal. See Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”) (emphasis added). “The ineffectiveness of appellate counsel cannot be based upon the failure of counsel to assert a theory of law which was not at the time of the appeal fully articulated or established in the law.” Alvord v. State, 396 So. 2d 184, 191 (Fla.1981); see also Villavicencio v. State, 719 So. 2d 322 (Fla. 3d DCA 1998).
Petition denied.
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Cited By
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Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Alvord v. State, 396 So. 2d 184 (Fla. 1981)
- Cardinal Scott v. State, 519 So. 2d 734 (Fla. 3d DCA 1988)
- Villavicencio v. State, 719 So. 2d 322 (Fla. 3d DCA 1998)
- Levy Watson v. State, 415 So. 2d 128 (Fla. 4th DCA 1982)
- Cicenia v. Mitey Mite Race Tracks, Inc., 415 So. 2d 128 (Fla. 4th DCA 1982)
- Lukaj v. State, 729 So. 2d 965 (Fla. 1st DCA 1999)
- Tejada v. State, 729 So. 2d 965 (Fla. 3d DCA 1999)