JOHN E. KIST, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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John Kist petitioned for relief based on ineffective assistance of appellate counsel for failing to raise a double jeopardy challenge to his convictions for grand theft and insurance fraud arising from the same transactions. The court granted the petition in part, finding appellate counsel was ineffective for not raising an issue that had been addressed by three district courts and was later validated by the court's own precedent in Hays v. State.
Appellate counsel was ineffective for failing to raise the double jeopardy issue because it had been addressed by three other district courts at the time of direct appeal (LaRoche, Watson, and Sinclair) and because the court's subsequent decision in Hays indicated the court may have found in Kist's favor had the issue been raised. Kist is entitled to a new direct appeal on this double jeopardy issue.
[1] Convictions for both grand theft and insurance fraud arising from the same transaction violate double jeopardy.
[2] Appellate counsel may be deemed ineffective for failing to raise a double jeopardy claim when persuasive case law from other district courts addressed the issue at the ti…
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Join FLexlaw to unlock all legal intelligence“Appellate counsel could not have known about Hays because it was decided two years after Kist's direct appeal. However, at the time of Kist's direct appeal, the Fourth District had addressed this issue in LaRoche v. State... the First District had addressed it in Watson v. State... and the Fifth District had addressed it in Sinclair v. State”
Establishes that while Hays was decided after appeal, similar precedent existed at the time of original appeal, supporting ineffectiveness claim
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Join FLexlaw to unlock all legal intelligenceKist was convicted of multiple counts of grand theft and insurance fraud in several transaction pairs (counts 3-4, 5-6, 10-11, 12-13, and 17-18). On d…
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VILLANTI, Judge.
John E. Kist files this petition alleging ineffective assistance of appellate counsel. We conclude that there is no merit to issues one, three, and four of the petition. In issue two, Kist alleged that appellate counsel was ineffective for failing to raise the issue of whether his convictions for both grand theft and insurance fraud in counts three and four, counts five and six, counts ten and eleven, counts twelve and thirteen, and counts seventeen and eighteen violate double jeopardy.
In Hays v. State, 844 So. 2d 705 (Fla. 2d DCA 2003), this court held that convictions for both grand theft and insurance fraud for the same transaction violate double jeopardy. Appellate counsel could not have known about Hays because it was decided two years after Kist’s direct appeal.
However, at the time of Kist’s direct appeal, the Fourth District had addressed this issue in LaRoche v. State, 761 So. 2d 385 (Fla. 4th DCA 1998) (holding that convictions violate double jeopardy because the same actions constituted the basis for grand theft and insurance fraud convictions), the First District had addressed it in Watson v. State, 655 So. 2d 1250 (Fla. 1st DCA 1995) (holding that conviction for grand theft violated double jeopardy because it did not involve separate and distinct criminal episode from burning with intent to defraud and filing false insurance claim), and the Fifth District had addressed it in Sinclair v. State, 645 So. 2d 105 (Fla. 5th DCA 1994) (holding that grand theft and insurance fraud that occurred in two separate transactions did not violate double jeopardy).
In its response, the State argues that Kist’s convictions are more like those in Sinclair than those in Hays and LaRoche and therefore do not violate double jeopardy. Whether Kist’s convictions are more like Sinclair is not relevant to whether appellate counsel should have argued other persuasive case law, such as LaRoche. This determination would have been resolved on the merits on direct appeal. We find that appellate counsel was ineffective for failing to raise this issue because it had been addressed by three other district courts at the time of Kist’s direct appeal and because our subsequent decision in Hays indicates that we may have found in Kist’s favor had the issue been raised. We therefore grant the petition as to issue two. As such, Kist is entitled to have a new direct appeal on the issue of whether his convictions for both grand theft and insurance fraud in counts three and four, counts five and six, counts ten and eleven, counts twelve and thirteen, and counts seventeen and eighteen violate double jeopardy.
Accordingly, the petition is denied in part and granted in part, with instructions to the trial court to appoint an appellate attorney to represent Kist on the above issue on appeal within thirty days from the issuance of the mandate in this case. Appellate counsel shall, within thirty days of the appointment, file a new notice of appeal and reference this opinion in the notice of appeal.
Petition granted in part, denied in part.
STRINGER and DAVIS, JJ., Concur.
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Zeno v. State, 922 So. 2d 431 (Fla. 2d DCA 2006)…These cases were also available to Ariel Zeno’s appellate counsel. Appellate counsel has a duty to raise an issue that is supported by case law from other district courts of appeal where this court has not yet ruled on the issue. See Kist v. State, 900 So. 2d 571 (Fla. 2d DCA 2004) (holding that appellate counsel was ineffective for failing to raise the issue that Kist’s convictions on certain offenses violated the prohibition against double jeopardy where this issue had been addressed by three other distric…
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Weitz v. State, 229 So. 3d 872 (Fla. 2d DCA 2017)…he statutory elements of, unlawful use of a two-way communications device is so close to the questions answered in Mizner and Exantus that a reasonable appellate lawyer would have raised the argument in Mr. Weitz’s direct appeal.2 Cf. Kist v. State, 900 So. 2d 571, 572 (Fla. 2d DCA 2004) (finding appellate counsel ineffective for failing to raise a [*875] double jeopardy argument based on relevant cases from other district courts of appeal). In that connection, we note that during the sentencing in this case,…
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Barnes v. State, 993 So. 2d 1012 (Fla. 2d DCA 2008)…redated Mr. Barnes’ notice of appeal. “Appellate counsel has a duty to raise an issue that is supported by case law from other district courts of appeal where this court has not yet ruled on the issue.” Zeno, 922 So. 2d at 433 (citing Kist v. State, 900 So. 2d 571 (Fla. 2d DCA 2004)). In Williams, the use of the conjunction “or” between Williams’ name and that of his codefendant in instructing the jury on cocaine trafficking constituted fundamental error because it may have misled the jury into thinking that…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Watson v. State, 655 So. 2d 1250 (Fla. 1st DCA 1995)
- Sinclair v. State, 645 So. 2d 105 (Fla. 5th DCA 1994)
- Hays v. State, 844 So. 2d 705 (Fla. 2d DCA 2003)