WILLIAM GARCIA SANTIAGO, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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William Garcia Santiago petitioned for relief for ineffective assistance of appellate counsel in his direct appeal of a cocaine trafficking conviction. The Fourth District Court of Appeal denied the petition, finding that Santiago failed to establish that his appellate counsel's performance was deficient or that he was prejudiced by the alleged failures.
The court denied Santiago's petition for ineffective assistance of appellate counsel. Most of the alleged errors were either not preserved for appeal, not raised on direct appeal, or not constituting fundamental error. Additionally, even where issues were raised, the trial court's actions and jury verdict were not improper under applicable law, including Apprendi.
[1] A claim of ineffective assistance of appellate counsel cannot be based on issues that were not properly preserved for appeal or do not constitute fundamental error.
[2] Prosecutorial comments during closing arguments do not constitute improper bolstering if they are not objected to at trial and do not rise to the level of fundamental err…
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“he fails to establish that the issue was properly preserved or that it constituted fundamental error. In any event, on the merits, the comments did not constitute improper bolstering.”
Establishes the standard for raising issues on appeal—they must be preserved at trial or constitute fundamental error—and applies it to the bolstering claim.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSantiago was convicted of trafficking in cocaine. His appellate counsel raised certain issues on direct appeal but did not raise others. Santiago clai…
The full statement of facts, procedural history, and disposition for this case are member content.
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WARNER, J.
We deny the petition seeking relief for ineffective assistance of appellate counsel in petitioner’s direct appeal of his conviction for trafficking in cocaine.
As to petitioner’s claim that counsel failed to raise as an issue that the prosecutor improperly bolstered the police officer’s testimony, he fails to establish that the issue was properly preserved or that it constituted fundamental error. In any event, on the merits, the comments did not constitute improper bolstering. See Reyes v. State, 700 So. 2d 458, 461 (Fla. 4th DCA 1997). Although petitioner further argues that appellate counsel failed to argue error as to other comments in the prosecutor’s closing argument, these issues were in fact raised on direct appeal or were not preserved by timely objection at trial.
Petitioner faults appellate counsel for failing to raise that the trial court improperly had “ex parte time” with a juror and that the jury instructions were misleading. However, again, because these issues were not preserved for appeal, nor would they constitute fundamental error, they cannot be raised on appeal, and thus, cannot be grounds for ineffective assistance of appellate counsel. See Rutherford v. Moore, 774 So. 2d 637, 646 (Fla.2000).
Petitioner’s final claim of ineffective assistance is that appellate counsel faded to raise an issue based upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), as to his conviction. Specifically, he questions whether the jury found him guilty by unanimous verdict, as the general verdict did not specify whether the jurors believed he sold, manufactured, delivered, or purchased the cocaine. First, Apprendi does not apply to this claim, as it relates to submitting facts to a jury that increase a defendant’s penalty. See id. at 490, 120 S.Ct. 2348. Second, the issue is without merit. See Griffin v. United States, 502 U.S. 46, 49, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991); accord San Martin v. State, 717 So. 2d 462, 470 (Fla.1998) (“While a general guilty verdict must be set aside where the conviction may have rested on an unconstitutional ground or a legally inadequate theory, reversal is not warranted where the general verdict could have rested upon a theory of liability without adequate evidentiary support when there was an alternative theory of guilt for which the evidence was sufficient.” (footnotes omitted)).
Petition denied.
GUNTHER and SHAHOOD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000)
- Griffin v. United States, 502 U.S. 46 (U.S. 1991)
- Martin v. State, 717 So. 2d 462 (Fla. 1998)
- Reyes v. State, 700 So. 2d 458 (Fla. 4th DCA 1997)
- McLEOD v. State, 700 So. 2d 458 (Fla. 4th DCA 1997)