NATHAN B. PARKER, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court granted the petition for a belated appeal, recognizing ineffective assistance of appellate counsel.
The defendant was convicted of home invasion robbery and his sentence was enhanced for carrying a weapon. The State concedes that sentence enhancement…
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PETERSON, J.
Nathan B. Parker seeks a belated appeal, pursuant to Florida Rule of Appellate Procedure 9.141(c), alleging ineffective assistance of appellate counsel.
A jury convicted Parker of home invasion robbery while armed with a deadly weapon.1 Recognizing that enhancement of a defendant’s sentence is impermissible unless a defendant actually possesses a weapon during the commission of a crime, defense counsel at trial moved for a judgment of acquittal. The trial court denied the motion and Parker’s conviction was enhanced from a first-degree felony to a life felony, pursuant . to section 775.087(l)(a), Florida Statutes' (2001), for carrying a weapon during the robbery.
The State now acknowledges that enhancement is impermissible unless a defendant actually possesses a weapon -during the commission of the crime. See, e.g., State v. Rodriguez, 602 So. 2d 1270 (Fla. 1992); Blanc v. State, 899 So. 2d 455 (Fla. 4th DCA 2005); Thompson v. State, 862 So. 2d 955 (Fla. 2d DCA 2004); Clark v. State, 701 So. 2d 912 (Fla. 4th DCA 1997). See also Demps v. State, 649 So. 2d 938 (Fla. 5th DCA 1995).
Parker’s appellate counsel, however, failed to raise the enhancement issue during the previous appeal resulting in an affirmance. See Parker v. State, 842 So. 2d 130 (Fla. 5th DCA 2003). Accordingly, we grant the petition. A copy of this opinion shall be filed with the trial court and treated as the notice of appeal.
GRANT BELATED APPEAL.
SHARP, W„ and ORFINGER, JJ., concur. . §§ 812.13(1), 812.135 and 775.087(l)(a), Fla. Stat. (2001).
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Connolly v. State, 172 So. 3d 893 (Fla. 3d DCA 2015)…ersing reclassification under section 775.087(1) where the defendant was convicted as a principal with his co-defendant, and the verdict did not reflect that the defendant was in actual possession of the firearm during the offense); Parker v. State, 906 So. 2d 1273 (Fla. 5th DCA 2005) (noting that reclassification under section 775.087(1) is impermissible unless the defendant actually possesses a weapon during the commission of the crime); Porter v. State, 737 So. 2d 1119, 1119 (Fla. 2d DCA 1999) (citing Rodri…1 / 2
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Cochran v. State, 925 So. 2d 370 (Fla. 5th DCA 2006)…on what has been presented to us, it appears to have been ineffective assistance of appellate counsel not to raise this issue on appeal.1 A copy of this opinion shall be filed with the trial court and treated as a notice of appeal. Parker v. State, 906 So. 2d 1273 (Fla. 5th DCA 2005). PETITION GRANTED. SHARP, W., and LAWSON, JJ., concur. . This case is unlike Bradshaw v. State, 744 So. 2d 1095 (Fla. 5th DCA 1999), in which there is no indication that competency proceedings under Rule 3.210 had been invoked…
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Gollobith v. Ferrell, 84 So. 3d 1095 (Fla. 2d DCA 2012)…72) (reciting party’s reliance on familiar rule that “past consideration is not legal consideration”). “Providing past services rendered without the expectation of compensation is not adequate consideration to support a contract.” Smith v. Locklear, 906 So. 2d 1273, 1274 (Fla. 5th DCA 2005) (affirming trial court’s determination that purported agreement was unenforceable because it lacked consideration). Without consideration, a “promisor may change his mind at will.” Id. (quoting Brown v. Brown, 501 So. 2d 24…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Anibal Rodriguez, 602 So. 2d 1270 (Fla. 1992)
- Wight v. G. Leonard Gioia, M.D., 862 So. 2d 955 (Fla. 5th DCA 2004)
- Demps v. State, 649 So. 2d 938 (Fla. 5th DCA 1995)
- Blanc v. State, 899 So. 2d 455 (Fla. 4th DCA 2005)
- Clark v. State, 701 So. 2d 912 (Fla. 4th DCA 1997)