WILLIAM M. MCCANN, PETITIONER,
v.
MICHAEL W. MOORE, SECRETARY, STATE OF FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT
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Florida appellate court granted habeas corpus petition for ineffective assistance of appellate counsel where counsel failed to cite controlling First District precedent that would have prevented conviction for attempted procurement, requiring reversal and reduction to solicitation charge.
Appellate counsel was ineffective for failing to cite Register v. State, which established that conviction for procurement of a minor for prostitution was improper under the facts presented, warranting habeas relief and reversal.
[1] Appellate counsel's failure to cite controlling precedent from another district that would have prevented conviction constitutes ineffective assistance warranting habeas…
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Join FLexlaw to unlock all legal intelligence“Although there was ample time for petitioner's appellate counsel to call our attention in petitioner's case to Register, petitioner's counsel did not do so, and it appears that we were not aware of it.”
Court explaining counsel's failure to cite controlling precedent from First District
McCann was convicted of attempted procurement of a person under eighteen for prostitution. The Fourth District affirmed in McCann v. State, but the Fi…
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PER CURIAM.
Petitioner William McCann has filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel.
In McCann v. State, 711 So. 2d 1290 (Fla. 4th DCA 1998), we affirmed petitioner’s conviction for attempted procurement of a person under the age of eighteen for prostitution. Judge Gross dissented, contending that petitioner could only be convicted of solicitation, not procuring. Around the same time our opinion was issued, the first district issued an opinion in Register v. State, 715 So. 2d 274 (Fla. 1st DCA 1998), and held that under facts similar to those in McCann’s case, there could be no conviction for procurement. Although there was ample time for petitioner’s appellate counsel to call our attention in petitioner’s case to Register, petitioner’s counsel did not do so, and it appears that we were not aware of it.
Not long thereafter, in Kobel v. State, 745 So. 2d 979 (Fla. 4th DCA 1999)(en banc), we receded from our decision in McCann’s case, and adopted the reasoning of the first district in Register and Judge Gross’ dissent in McCann. The state concedes that we should now grant McCann relief. Based on that concession, we grant the petition and reverse the conviction and sentence for attempted procurement. On remand, the trial court shall reduce that charge to solicitation of prostitution and resentence McCann.
GUNTHER, KLEIN and TAYLOR, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Evangelista Lopez v. State, 68 So. 3d 332 (Fla. 5th DCA 2011)…tate, 679 So. 2d 1269 (Fla. 2d DCA 1996) (determining that although issue was not completely settled, counsel was ineffective for failing to cite favorable binding case law from another district in effect at time of pending appeal); McCann v. Moore, 763 So. 2d 556 (Fla. 4th DCA 2000) (granting belated appeal as counsel had ample time to call favorable decision from another district to court’s attention, but failed to do so); Ford v. Singletary, 689 So. 2d 392 (Fla. 3d DCA 1997) (holding that counsel was ineff…
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Granberry v. State, 919 So. 2d 699 (Fla. 5th DCA 2006)…he law.” Nonetheless, there are cases that hold that appellate counsel is ineffective for failing to raise favorable cases decided by other jurisdictions during the pendency of an appeal, which could result in a reversal. See, e.g., McCann v. Moore, 763 So. 2d 556 (Fla. 4th DCA 2000) (finding that counsel had ample time to call favorable decision from another district to court’s attention, but failed to do so, so belated appeal granted); Ford v. Singletary, 689 So. 2d 392 (Fla. 3d DCA 1997) (holding that coun…
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Dill v. State, 79 So. 3d 849 (Fla. 5th DCA 2012)…ble); Ortiz v. State, 905 So. 2d 1016 (Fla. 2d DCA 2005) (determining appellant’s counsel’s failure to request supplemental briefing on favorable appellate decision from other district constituted ineffective assistance of counsel); McCann v. Moore, 763 So. 2d 556 (Fla. 4th DCA 2000) (granting belated appeal because counsel had ample time to call favorable case from another district to court’s attention, but failed to do so); Whatley v. State, 679 So. 2d 1269 (Fla. 2d DCA 1996) (determining that although issu…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Register v. State, 715 So. 2d 274 (Fla. 1st DCA 1998)
- Kobel v. State, 745 So. 2d 979 (Fla. 4th DCA 1999)
- McCANN v. State, 711 So. 2d 1290 (Fla. 4th DCA 1998)