PAUL D. PARTRIDGE, PETITIONER,
v.
MICHAEL W. MOORE, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT
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Paul Partridge petitioned for post-conviction relief claiming ineffective assistance of appellate counsel after his direct appeal resulted in modification of his convictions. The court denied the petition as time-barred under Florida's two-year rule and alternatively for failure to demonstrate prejudice.
The petition was denied as time-barred because Partridge failed to allege that appellate counsel affirmatively misled him about the results of the direct appeal as required by the rule. Additionally, even if the merits were considered, the petition was facially insufficient because Partridge failed to demonstrate how different results would have occurred had counsel pursued rehearing or further review.
[1] A petition for ineffective assistance of appellate counsel is time-barred if it is filed more than two years after the conviction becomes final, unless the petitioner all…
[2] A petitioner alleging ineffective assistance of appellate counsel must demonstrate prejudice by showing how the outcome of the proceeding would have differed had counsel…
Previewing 2 of 5 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“Rule 9.140(j)(3)(B) permits a petition of this nature to be considered more than two years after the conviction becomes final if the petition "alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel."”
Establishes the legal standard for exceeding the two-year filing deadline in ineffective assistance of appellate counsel claims
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Join FLexlaw to unlock all legal intelligencePartridge was convicted of sexual battery with a deadly weapon and robbery with a deadly weapon. On direct appeal in 1996, the First District held tha…
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PER CURIAM.
Paul D. Partridge was convicted of sexual battery with a deadly weapon and robbery with a deadly weapon. On direct appeal, this court held that habitualized sentencing for the sexual battery conviction was impermissible. It also directed that the robbery with a deadly weapon conviction be reduced to robbery with a weapon because that was the crime which was charged. The judgments and sentences were otherwise affirmed. Partridge v. State, 680 So. 2d 543 (Fla. 1st DCA 1996).
In the instant petition, Partridge complains of ineffective assistance of appellate counsel. According to petitioner, his Public Defender gave him bad advice when he told Partridge in a letter written after the opinion issued that there was nothing else to be done. Recognizing that his petition falls outside the two-year limit imposed by Florida Rule of Appellate Procedure 9.140(j)(3)(B), Partridge argues the late fil ing should be excused because of counsel’s mistake.
Rule 9.140(j)(3)(B) permits a petition of this nature to be considered more than two years after the conviction becomes final if the petition “alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel.” Here, petitioner makes no allegation that his appellate counsel misinformed him about the results of the direct appeal. Accordingly, we find that it is time-barred and should be denied as such. Moreover, even if we were to address the merits, the petition fails to state how petitioner was prejudiced by counsel’s alleged substandard performance. Petitioner does not describe how the results of the proceeding would have differed had counsel moved this court for rehearing and/or sought further review in the Supreme Court of Florida. The petition is therefore facially insufficient. See Knight v. State, 394 So. 2d 997, 1001 (Fla.1981); see also Nerey v. State, 634 So. 2d 206 (Fla. 3d DCA 1994) (rejecting theory that appellate counsel was ineffective for failing to pursue discretionary review in the Supreme Court of Florida).
PETITION DENIED.
KAHN, WEBSTER and VAN NORTWICK, JJ., concur.
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Allen v. State, 917 So. 2d 906 (Fla. 3d DCA 2005)…tion was filed. The instant petition and the amendments which followed allege various claims of ineffective assistance of counsel. As we conclude that the issues raised are either time barred, see Fla. R.App. P. 9.141(c)(4)(B); Partridge v. Moore, 768 So. 2d 1128 (Fla. 1st DCA 2000), review denied, 789 So. 2d 347 (Fla.2001); MacArthur v. Moore, 756 So. 2d 232, 233 (Fla. 3d DCA 2000); and/or procedurally barred as successive; and/or have been previously raised and are therefore barred by the doctrines of the…
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Diaz v. State, 11 So. 3d 400 (Fla. 3d DCA 2009)…SUAREZ, J. We deny Jose A. Diaz’s petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. See McCray v. State, 699 So. 2d 1366 (Fla.1997); Melara v. State, 997 So. 2d 1135 (Fla. 3d DCA 2008); Partridge v. Moore, 768 So. 2d 1128 (Fla. 1st DCA 2000). Petition denied.…
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Giles v. State, 262 So. 3d 881 (Fla. 1st DCA 2019)
Authorities Cited
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Nerey v. State, 634 So. 2d 206 (Fla. 3d DCA 1994)
- Lewis v. State, 680 So. 2d 543 (Fla. 1st DCA 1996)
- Partridge v. State, 680 So. 2d 543 (Fla. 1st DCA 1996)