GERALD GERVASONI, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Gerald Gervasoni seeks habeas corpus relief for belated appeal, claiming ineffective assistance of appellate counsel for failing to challenge his life sentence as a habitual felony offender. The court finds that appellate counsel was ineffective for not raising a clear sentencing error—an upward departure from guideline-mandated 17 years without valid justification—and grants relief by vacating and remanding the sentence.
Appellate counsel was ineffective for failing to raise the sentencing error. Under the unique circumstances, Gervasoni is entitled to a belated appeal. The court vacates the sentence and remands for resentencing under the law in effect at the time of the offense.
[1] The law in effect at the time of the offense applies to sentencing, even if the defendant absconded and was charged later.
[2] Under the 1985 sentencing guidelines, habitual felony offender status alone was not a valid reason for an upward departure from the guidelines.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Under the applicable guidelines, petitioner's sentence could not have exceeded seventeen years. The state acknowledges that petitioner's life sentence was an upward departure from the guidelines and the record establishes that no reasons were given for the departure, other than petitioner's habitual offender status.”
Establishes the clear sentencing error at issue—an unauthorized departure without valid justification
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Join FLexlaw to unlock all legal intelligenceGervasoni was convicted of second-degree murder committed in 1986 and sentenced as a habitual felony offender to life imprisonment. He absconded and w…
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GRIFFIN, J.
Petitioner, Gerald Gervasoni [“Ger-vasoni”], seeks a writ of habeas corpus for belated appeal, claiming ineffective assistance of appellate counsel. He was convicted of second-degree murder and was sentenced as a habitual felony offender to life in prison. The murder was committed in 1986; therefore, the law in effect in 1986 applies, even though Gervasoni absconded and was not charged until 1996. See State v. Smith, 547 So. 2d 613 (Fla.1989). In Whitehead v. State, 498 So. 2d 863 (Fla. 1986), the Supreme Court of Florida held that under the 1985 version of the sentencing guidelines, defendants sentenced as habitual felony offenders had to be sentenced within the guidelines, unless a valid reason for departure was stated, and a defendant’s status as a habitual felony offender was not a valid reason to depart. See also Shelton v. State, 739 So. 2d 1235 (Fla. 4th DCA 1999). Under the applicable guidelines, petitioner’s sentence could not have exceeded seventeen years. The state acknowledges that petitioner’s life sentence was an upward departure from the guidelines and the record establishes that no reasons were given for the departure, other than petitioner’s habitual offender status.
Petitioner’s áppellate counsel did not raise this sentencing issue in the direct appeal, instead filing an Anders brief.1 In Brintley v. Singletary, 605 So. 2d 1303 (Fla. 2d DCA 1992), the court held that appellate counsel was ineffective for failing to contest the legality of an habitual felony offender sentence which exceeded the guidelines, in violation of the law in effect at the time of the offense. At the time the initial brief was filed in petitioner’s direct appeal, this court had just issued its decision in Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998), limiting review of sentencing errors to errors which were preserved by objection or the filing of a Rule 3.800(b) motion. The supreme court has now approved Maddox in part, but has mandated that unpreserved patent and serious sentencing errors having a quantifiable effect on the length of a prisoner’s incarceration that were not preserved pri-or to the adoption of the amended rules are correctable on direct appeal as fundamental error. See Maddox v. State, 760 So. 2d 89 (Fla.2000).
Had petitioner’s appellate counsel raised the sentencing error in this case, this court may have affirmed the sentence based on Maddox. However, had counsel sought review of that decision in the supreme court, there is a reasonable probability that the decision would have been reversed and the sentence ordered to be corrected. Although we acknowledge that appellate counsel is not required to anticipate changes in the law, under the unique circumstances of this case, we find that petitioner is entitled to a belated appeal of his sentence.2
Because the issue presented is clear on the face of the record, we dispense with the necessity of requiring further briefs and proceedings. See Johnson v. Wainwright, 498 So. 2d 938 (Fla.1986), cert. denied, 481 U.S. 1016, 107 S.Ct. 1894, 95 L.Ed.2d 500 (1987). We vacate petitioner’s sentence and remand the case to the trial court for re-sentencing under the law in effect at the time the offense was committed.
PETITION GRANTED IN PART, SENTENCE VACATED AND REMANDED.
'HARRIS, and PETERSON, JJ., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
. The other issues raised in the petition are without merit or are procedurally barred.
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)…appeal applies when determining whether appellate counsel was ineffective.” 919 So. 2d at 701. We recognize that appellate counsel is not required to anticipate changes in the law. See Walton v. State, 847 So. 2d 438 (Fla.2003); Gervasoni v. State, 766 So. 2d 478 (Fla. 5th DCA 2000). In Alvord v. State, 396 So. 2d 184, 191 (Fla.1981), our supreme court explained that “[t]he 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…
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Granberry v. State, 919 So. 2d 699 (Fla. 5th DCA 2006)…rt in Fair and Estevez had held that appellate counsel was ineffective for not arguing fundamental error. Appellate counsel is not required to anticipate changes in the law. See, e.g., Walton v. State, 847 So. 2d 438 (Fla.2003); Gervasoni v. State, 766 So. 2d 478 (Fla. 5th DCA 2000). In Alvord v. State, 396 So. 2d 184, 191 (Fla.1981), the supreme court explained that “[t]he 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…
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Dill v. State, 79 So. 3d 849 (Fla. 5th DCA 2012)…hich the claim of ineffective assistance of counsel can be based.” Freeman, 761 So. 2d at 1069. Although appellate counsel is not required to anticipate changes in the law, see Walton v. State, 847 So. 2d 438, 445 (Fla.2003) and Gervasoni v. State, 766 So. 2d 478, 479-80 (Fla. 5th DCA 2000), “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.” Granberry v. State…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Maddox v. State, 760 So. 2d 89 (Fla. 2000)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- State v. Smith, 547 So. 2d 613 (Fla. 1989)
- Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)
- Compton Cmty. Coll. Dist. v. Nw. Nat'l Cas. Co., 481 U.S. 1016 (U.S. 1987)
- Johnson v. Louie L. Wainwright, 498 So. 2d 938 (Fla. 1986)
- Shelton v. State, 739 So. 2d 1235 (Fla. 4th DCA 1999)
- Freeman Brintley v. Singletary, 605 So. 2d 1303 (Fla. 2d DCA 1992)