JOSE C. MARRERO, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Marrero sought relief for ineffective assistance of appellate counsel. The court granted his petition regarding his habitual felony offender (HFO) sentence, finding that appellate counsel should have challenged the sentence because the sentencing judge applied an incorrect version of the statute when determining Marrero's eligibility for HFO sentencing.
The first claim was without merit because Marrero was convicted of attempted trafficking in heroin, not attempted conspiracy to traffic. The second claim had merit: appellate counsel was ineffective for failing to challenge the HFO sentence, which was illegal because under the 1999 statute (applicable to offenses committed in 2000), Marrero was not eligible for HFO sentencing.
[1] A claim of ineffective assistance of appellate counsel is not meritorious if the underlying legal argument is without merit.
[2] A habitual felony offender sentence may be illegal if imposed under a statute that was amended to preclude eligibility for the offense committed.
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Join FLexlaw to unlock all legal intelligence“Because Marrero was convicted of attempted trafficking in heroin and not attempted conspiracy to traffic, his claim is without merit”
Court's resolution of the first ineffective assistance claim regarding the nonexistent crime allegation
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Join FLexlaw to unlock all legal intelligenceMarrero was convicted after a bench trial of attempted trafficking in heroin and possession of heroin with intent to sell or deliver. He was sentenced…
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SALCINES, Judge.
Jose C. Marrero, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raised two claims of ineffective assistance of appellate counsel. In his first claim, Marrero alleged that appellate counsel was ineffective for failing to argue that the sentencing judge convicted Marrero of “attempted conspiracy to traffic in heroin,” which is a nonexistent crime. Because Marrero was convicted of attempted trafficking in heroin and not attempted conspiracy to traffic, his claim is without merit, and we deem it unnecessary to discuss it further. However, we grant the petition as it relates to Marrero’s second claim, in which he alleged that appellate counsel was ineffective in failing to argue that his habitual felony offender (HFO) sentence was illegal. Because Marrero’s HFO sentence would have required reversal had the issue been raised on direct appeal, we reverse his sentence and remand for resentencing.
After a bench trial, Marrero was found guilty of attempted trafficking in heroin and possession of heroin with intent to sell or deliver. He was sentenced as a habitual felony offender to thirty years in prison for count one and to a guidelines sentence of fifteen years in prison for count two, both terms to run concurrent. His judgments and sentences were affirmed on appeal. See Marrero v. State, 840 So. 2d 238 (Fla. 2d DCA 2003).
At sentencing, defense counsel objected to Marrero’s being sentenced as a HFO for attempted trafficking in heroin. The sentencing judge erroneously consulted a 2001 Florida Statutes book and determined that Marrero was eligible for a HFO sentence. However, Marrero’s offenses were committed on January 5, 2000. Section 893.135 had been amended between the 1999 statute, which should have been used to sentence Marrero, and the 2001 statute, which was actually used to sentence him. Under the 1999 statute, Marrero would not have been eligible for a HFO sentence. See § 893.135(l)(b)(l)(c), Fla. Stat. (1999); Fortner v. State, 779 So. 2d 462 (Fla. 2d DCA 2000); Dillard v. State, 820 So. 2d 994 (Fla. 4th DCA 2002); Tippins v. State, 780 So. 2d 147 (Fla. 5th DCA 2000).
Because defense counsel preserved this issue at the sentencing hearing and because we would have reversed Marrero’s HFO sentence had the issue been raised on direct appeal, we grant Marrero’s petition. We reverse his HFO sentence and remand for resentencing.
Petition alleging ineffective assistance of appellate counsel granted.
SILBERMAN and VILLANTI, JJ., Concur.
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Citator
Cited By
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Marrero v. State, 967 So. 2d 934 (Fla. 2d DCA 2007)…granted the petition as to the second claim. The court concluded that “[b]e-cause Marrero’s HFO sentence would have required reversal had the issue been raised on direct appeal, we reverse his sentence and remand for resentencing.” Marrero v. State, 864 So. 2d 1131, 1132 (Fla. 2d DCA 2003). In June 2004, the trial court resentenced Marrero. Marrero appealed, and this court affirmed the new sentence. See Marrero v. State, 912 So. 2d 1229 (Fla. 2d DCA 2005) (table decision). Our mandate issued in November 2005.…
Authorities Cited
- Dillard v. State, 820 So. 2d 994 (Fla. 4th DCA 2002)
- Fortner v. State, 779 So. 2d 462 (Fla. 2d DCA 2000)
- Tippins v. State, 780 So. 2d 147 (Fla. 5th DCA 2000)