LEROY JONES, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Leroy Jones petitioned for relief based on ineffective assistance of appellate counsel for failing to challenge his dual sentencing as both a habitual felony offender and violent career criminal. The court granted the petition, holding that appellate counsel's failure to preserve the sentencing error violated the right to effective assistance, and reversed the sentence for resentencing.
The court held that appellate counsel was ineffective in failing to raise the dual sentencing issue on direct appeal. Under Clines v. State and Works v. State, only one recidivist category under section 775.084 may be applied to any given criminal sentence, and appellate counsel should have preserved this sentencing error through a Rule 3.800(b)(2) motion.
[1] A defendant cannot be sentenced under both the habitual felony offender and violent career criminal statutes for a single offense.
[2] Appellate counsel is ineffective when failing to preserve a sentencing error for review by filing a motion to correct a sentencing error.
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Join FLexlaw to unlock all legal intelligence“only one recidivist category in section 775.084, Florida Statutes (2002), may be applied to any given criminal sentence”
Establishes the controlling legal principle that dual sentencing under multiple recidivist categories is improper
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Join FLexlaw to unlock all legal intelligenceJones was convicted by jury of second-degree murder and sentenced to life imprisonment as both a violent career criminal and habitual felony offender.…
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SILBERMAN, Judge.
Leroy Jones, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises several claims of ineffective assistance of appellate counsel. We grant the petition as it relates to one of the claims, and we deny the remaining claims without discussion.
Jones was convicted, after jury trial, of second-degree murder. The trial court imposed a sentence of life imprisonment both as a violent career criminal and as a habitual felony offender. The conviction and sentence were affirmed on direct appeal. Jones v. State, 910 So. 2d 267 (Fla. 2d DCA 2005) (table decision). Jones contends, and we agree, that appellate counsel was ineffective in failing to raise the issue on direct appeal that the trial court improperly sentenced him as both a habitual felony offender and a violent career criminal.
In support of his claim, Jones relies on Clines v. State, 912 So. 2d 550 (Fla.2005). Clines was sentenced as a habitual felony offender and a violent career criminal for the offense of resisting arrest with violence. Id. at 554. Clines’ appellate attorney filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct a sentencing error, arguing that he could not be designated as both a habitual felony offender and a violent career criminal. Id.
The trial court denied the motion, and the First District affirmed the sentence, concluding that “such a sentence violates neither double jeopardy protections nor legislative intent.” Clines v. State, 881 So. 2d 721, 722 (Fla. 1st DCA 2004). The supreme court disagreed with the First District’s conclusion and remanded for re-sentencing, holding that only one recidivist category in section 775.084, Florida Statutes (2002),1 may be applied to any given criminal sentence. Clines, 912 So. 2d at 560. The supreme court noted that “the original sentence given to Clines for resisting arrest — a ten-year term of imprisonment with a ten-year mandatory minimum — would be authorized on remand by the violent career criminal category alone.” Id.
The supreme court’s decision in Clines issued during the pendency of the direct appeal in this case. The supreme court granted review in Clines based on the First District’s certification of conflict with this court’s holding in Works v. State, 814 So. 2d 1198 (Fla. 2d DCA 2002), and the Fourth District’s holding in Oberst v. State, 796 So. 2d 1263 (Fla. 4th DCA 2001). The opinion in Works issued prior to the conviction in the present case and was available to appellate counsel. Works was sentenced as both a habitual felony offender and a violent career criminal for the offense of shooting at, within, or into an occupied vehicle. 814 So. 2d at 1199.
We reversed Works’ sentence and instructed the trial court that, on remand, it could only sentence Works as a habitual felony offender or a violent career criminal. Id. Works’ appellate attorney preserved this issue for appeal by filing a rule 3.800(b)(2) motion in the trial court. Id.
In the present case, had appellate counsel properly filed a rule 3.800(b)(2) motion in the trial court alleging that Jones was improperly sentenced as both a habitual offender and a violent career criminal, and had the trial court erroneously denied the motion, we would have been compelled to reverse Jones’s sentence. Appellate counsel’s failure to preserve this sentencing error for appellate review by way of a rule 3.800(b)(2) motion constitutes ineffective assistance of counsel. See Gisi v. State, 848 So. 2d 1278, 1282 (Fla. 2d DCA 2008).
Accordingly, we grant the petition solely as it relates to this claim. Because a new appeal would be redundant, we reverse Jones’s sentence and remand with directions to the trial court to resentence Jones in accordance with this opinion. See Hakkenberg v. State, 889 So. 2d 935, 937 (Fla. 2d DCA 2004).
The petition is denied in part and granted in part.
KELLY and VILLANTI, JJ, Concur. . Jones was sentenced pursuant to section 775.084, Florida Statutes (2001). However, the year of the statute does not impact our decision in this case.
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Martinez v. State, 123 So. 3d 701 (Fla. 1st DCA 2013)…2008) (“[G]iven that ... the issue could have been raised by rule 3.800(b)(2) motion, ... appellate counsel’s failure to do so constitutes ineffective assistance.”); Flowers v. State, 965 So. 2d 1233, 1234 (Fla. 1st DCA 2007) (same); Jones v. State, 964 So. 2d 855, 856-57 (Fla. 2d DCA 2007) (“Appellate counsel’s failure to preserve this sentencing error for appellate review by way of a rule 3.800(b)(2) motion constitutes ineffective assistance of counsel.”); Evans v. State, 904 So. 2d 638, 639 (Fla. 1st DCA 2…1 / 2
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Riley v. State, 25 So. 3d 1 (Fla. 1st DCA 2008)…ld be redundant or unnecessary, it is appropriate to simply grant petitioner the relief to which he would be entitled had the issue been raised in the original appeal. See, e.g., Grimsley v. State, 967 So. 2d 1132 (Fla. 2d DCA 2007); Jones v. State, 964 So. 2d 855 (Fla. 2d DCA 2007); Evans v. State, 904 So. 2d 638 (Fla. 1st DCA 2005). In this case, whether the error is fundamental is not in question, the harmless error doctrine is not applicable, and we can discern no other reason why a second appeal would be…
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Anderson v. State, 988 So. 2d 144 (Fla. 1st DCA 2008)…d-degree felony, we find that the issue could have been raised by rule 3.800(b)(2) motion, and appellate counsel’s failure to do so constitutes ineffective assistance. See, e.g., Flowers v. State, 965 So. 2d 1233 (Fla. 1st DCA 2007); Jones v. State, 964 So. 2d 855 (Fla. 2d DCA 2007); Mack v. State, 955 So. 2d 51 (Fla. 1st DCA 2007); Evans v. State, 904 So. 2d 638 (Fla. 1st DCA 2005). Finally, the state suggests that the remedy available to petitioner is limited to a new direct appeal in order to determine t…1 / 2
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
- Clines v. State, 912 So. 2d 550 (Fla. 2005)
- Gisi v. State, 848 So. 2d 1278 (Fla. 2d DCA 2003)
- Hakkenberg v. State, 889 So. 2d 935 (Fla. 2d DCA 2004)
- Mack v. State, 796 So. 2d 1263 (Fla. 3d DCA 2001)
- Demoine Works v. State, 814 So. 2d 1198 (Fla. 2d DCA 2002)
- Clines v. State, 881 So. 2d 721 (Fla. 1st DCA 2004)