CORDELL T. ALLEN, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that a petition for writ of habeas corpus seeking a belated appeal based on ineffective appellate counsel is improper when it is successive to prior direct appeals and motions attacking the sentence.
Petitioner sought a writ of habeas corpus for a belated appeal, arguing his appellate counsel was ineffective for failing to challenge the illegal enh…
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PER CURIAM.
Allen petitions for a writ of habeas corpus seeking a belated appeal. He argues his appellate counsel was ineffective for having failed to argue on appeal that the trial court illegally enhanced1 his conviction for second degree-murder with a firearm to a life felony. We find no merit or support for Allen’s argument. See Hogan v. State, 719 So. 2d 957 (Fla. 4th DCA 1998). Further this petition is improper because it is successive to Allen’s direct appeal2 and his prior motion filed pursuant to Florida Rule of Appellate Procedure 3.850,3 both of which sought to attack his sentence.
Petition for Writ of Habeas Corpus DENIED.
GRIFFIN., CJ., W. SHARP, and GOSHORN, JJ., concur. .Section 775.087(1), Florida Statutes (1991) provides:
Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm ... the felony for which the person is charged shall be reclassified as follows:
(a) In the case of a felony of the first degree, to a life felony....
. This court affirmed without opinion. Allen v. State, 642 So. 2d 764 (Fla. 5th DCA 1994).
. This court affirmed a summary denial. Allen v. State, 667 So. 2d 788 (Fla. 5th DCA 1996).
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Cited By (25 total)
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Wilson v. State, 845 So. 2d 142 (Fla. 2003)…exceeds its former offer, a presumption of vindictiveness arises and such presumption was not overcome in this case.” Byrd, 794 So. 2d at 672. A majority of the Fifth District’s three-judge panel agreed, reasoning as follows: In McDonald v. State, 751 So. 2d 56, 59 (Fla. 2d DCA 1999), the court held that “when the judge has been involved in the plea negotiations and then later imposes a harsher sentence, the sentence is presumed to be vindictive.” That is a reasonable method of dispelling a defendant’s leg…1 / 2
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Byrd v. State, 794 So. 2d 671 (Fla. 5th DCA 2001)…laims on appeal that when the defendant rejects the court’s offer and is subsequently convicted, if the court exceeds its former offer, a presumption of vindictiveness arises and such presumption was not overcome in this case. In McDonald v. State, 751 So. 2d 56, 59 (Fla. 2d DCA 1999), the court held that “when the judge has been involved in the plea negotiations and then later imposes a harsher sentence, the sentence is presumed to be vindictive.” That is a reasonable method of dispelling a defendant’s leg…
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Johnson v. State, 877 So. 2d 795 (Fla. 5th DCA 2004)…“ ‘presumption may be overcome only if the record affirmatively demonstrates that the defendant’s insistence on a trial was given no consideration at sentencing.’ ” Harris v. State, 845 So. 2d 329, 330 (Fla. 2d DCA 2003) (quoting McDonald v. State, 751 So. 2d 56, 58 (Fla. 2d DCA 1999)). A review of the totality of the circumstances- is required to determine whether the harsher sentence is vindictive. See Wilson v. State, 845 So. 2d 142 (Fla. 2003). As the trial court in this case incorrectly denied the'mo…
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- Hogan v. State, 719 So. 2d 957 (Fla. 4th DCA 1998)