RICHARD LEE RUSSO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A subsequent supreme court decision that reverses a district court's interpretation of a statute does not constitute a fundamental change in the law for purposes of ineffective assistance of counsel claims if the attorney relied on the existing district court precedent.
[1] An attorney is not ineffective for relying on the controlling law of the district at the time of trial and appeal.
[2] A subsequent supreme court decision that reverses a district court's interpretation of a statute does not necessarily constitute a fundamental change in the law for purpo…
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Join FLexlaw to unlock all legal intelligenceRusso was convicted of trafficking hydrocodone tablets, with his attorney relying on the controlling law of the district which aggregated the weight o…
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HARRIS, J.
The issue in this case is whether the supreme court’s decision in Hayes v. State, 750 So. 2d 1 (Fla.1999), which reversed our decision in State v. Baxley, 684 So. 2d 831 (Fla. 5th DCA 1996), constitutes a fundamental change in the law so that Russo is permitted to raise an ineffective assistance of counsel claim based on his attorney’s reliance on the existing law of this district even though his appeal was concluded before Hayes was released.
Russo was convicted of trafficking in hydrocodone tablets. He contends that under Hayes, the individual tablets involved in his action contained insufficient hydrocodone to meet the statutory requirements for trafficking. In Baxley, the controlling law of this district at the time of Russo’s trial and appeal, we held, in effect, that the legislature was concerned with the total amount of hydrocodone available for sale and that each tablet should be treated as are individual rocks of cocaine and, since Baxley was not attempting to sell only one tablet, the aggregate weight of hydrocodone in all the tablets available for sale, and not the weight of hydrocodone in any individual tablet, would determine the seriousness of the offense. In Hayes, however, the supreme court reversed us and held that the legislature intended to treat the sale of hydroco-done tablets, regardless of the total weight of hydrocodone available in all the tablets for sale, as only a third degree felony.
Hence, Russo’s complaint is not with his attorney who was merely following the law of this district (which he was required to do) and therefore should not be held to be ineffective. His complaint is with this court which was subsequently found to have incorrectly interpreted the provisions of section 893.135(l)(c)l, Florida Statutes. Here, Russo has no remedy, unfortunately and unfairly as it may appear, unless Hayes fundamentally changed the law. We find no fundamental change in the law and affirm the trial court.
AFFIRMED.
PETERSON, J., concurs.
GRIFFIN, J., concurs in result only.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cady v. State, 783 So. 2d 332 (Fla. 5th DCA 2001)…50 So. 2d 1 (Fla.1999) to his conviction of trafficking in hydrocodone. In Hayes, the court held that the drug trafficking statute did not apply to possession of hydrocodone in amounts less then fifteen milligrams per dosage unit. In Russo v. State, 770 So. 2d 186 (Fla. 5th DCA 2000), this court held that Hayes did not fundamentally change the law so as to justify a retroactive application of the decision in post-conviction proceedings. In Klayman v. State, 765 So. 2d 784 (Fla. 4th DCA 2000), rev. granted, No…
Authorities Cited
- Kathyrn Hayes v. State, 750 So. 2d 1 (Fla. 1999)
- State v. Baxley, 684 So. 2d 831 (Fla. 5th DCA 1996)