WALTER D. MORRISON, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that appellate counsel was not ineffective for failing to raise the issue of the trial court's alleged violation of Florida Rule of Criminal Procedure 3.410.
[1] A violation of Florida Rule of Criminal Procedure 3.410, concerning notice and opportunity to be heard when a jury requests testimony read back, constitutes per se revers…
[2] Appellate counsel is not ineffective for failing to raise an issue on appeal that was already considered on direct appeal, even if raised pro se.
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Join FLexlaw to unlock all legal intelligenceWalter D. Morrison petitioned for habeas corpus, claiming ineffective assistance of appellate counsel for not raising an issue regarding the trial cou…
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PER CURIAM.
Walter D. Morrison petitions for habeas corpus relief, asserting that he was denied the effective assistance of counsel on appeal. Specifically, he contends that the trial court violated Florida Rule of Criminal Procedure 3.410 by responding to the jury’s request to have certain testimony read back without affording the defense notice or an opportunity to be heard, and that his appellate counsel was ineffective for failing to raise this per se reversible error. See Mills v. State, 620 So. 2d 1006 (Fla.1993).
While we agree that an error of this nature is per se reversible, we find that for a number of reasons, Morrison’s appellate counsel cannot be deemed to have rendered ineffective assistance.
First, this claim of error was considered by the court on direct appeal because Morrison raised it in a pro se brief.
Therefore, he has failed to demonstrate any measurable prejudice flowing from appellate counsel’s alleged omission. See Stano v. Dugger, 524 So. 2d 1018 (Fla.1988).
Secondly, reasonable and competent counsel could have concluded that although this alleged error is per se reversible, it nonetheless “must be invoked by contemporaneous objection at trial.” See Thomas v. State, 730 So. 2d 667, 668 (Fla.1998). Given that there is no showing that an objection was made in this case, appellate counsel cannot be deemed ineffective for failing to raise this claim. See Williamson v. Dugger, 651 So. 2d 84 (Fla.1994).
Finally, even assuming that situations exist in which a contemporaneous objection is not required in order to preserve this issue for appeal, and that appellate counsel merely failed to identify this issue, we would be reluctant to find counsel ineffective in this instance since the alleged error is not readily apparent from the face of the record.
For the foregoing reasons, we deny the petition for writ of habeas corpus. We do so, however, without prejudice to Morrison’s right to present his substantive claim to the trial court by motion for postconviction relief.
MINER and BROWNING, JJ., CONCUR; BENTON, J., DISSENTS.
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Towbridge v. State, 45 So. 3d 484 (Fla. 1st DCA 2010)…nsel, nor does the fact that the court could have identified the error in the course of its independent Anders review. See Riley v. State, 25 So. 3d 1, 2 n. 1 (Fla. 1st DCA 2008), rev. dismissed, 26 So. 3d 1288 (Fla.2009); but cf. Morrison v. State, 764 So. 2d 649 (Fla. 1st DCA 2000) (holding that a defendant cannot establish prejudice resulting from appellate counsel’s failure to raise an issue where the issue was considered by the court because it was raised in the defendant’s pro se brief). However, as exp…
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Moran v. State (Fla. 5th DCA 2020)…found it unnecessary to order additional briefing of this issue from appellate counsel. Thus, Moran has failed to demonstrate any measurable prejudice from appellate counsel’s failure to raise this argument on direct appeal. See Morrison v. State, 764 So. 2d 649, 649 (Fla. 1st DCA 2000) (holding that a defendant cannot establish prejudice resulting from appellate counsel’s failure to raise an issue where the issue was considered by the court in its review pursuant to Anders because it was raised in the defe…
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Williams v. State (Fla. 5th DCA 2025)
Authorities Cited
- Williamson v. Dugger, 651 So. 2d 84 (Fla. 1994)
- Mills v. State, 620 So. 2d 1006 (Fla. 1993)
- Thomas v. State, 730 So. 2d 667 (Fla. 1998)
- Stano v. Dugger, 524 So. 2d 1018 (Fla. 1988)