MICHAEL FLOWERS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Michael Flowers petitioned for relief based on ineffective assistance of appellate counsel. The court granted the petition in part and ordered a new appellate proceeding limited to two issues: an alleged illegal sentence under Yasin v. State and the sufficiency of a Nelson hearing where he lacked proper counsel representation.
The court granted the petition in part, finding that both claims presented recognized theories of ineffective assistance of appellate counsel that could result in relief. The court determined there was a reasonable probability the Yasin challenge would result in a more favorable sentence and that the Nelson hearing issue was viable, but declined to rule on the merits because the Yasin issue must first be addressed by the trial court.
[1] Ineffective assistance of appellate counsel may be established by a failure to preserve an issue for appeal by filing a motion in the trial court pursuant to Florida Rule…
[2] A claim of ineffective assistance of appellate counsel may arise from the failure to order a transcript of a hearing conducted pursuant to Nelson v. …
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Join FLexlaw to unlock all legal intelligence“Although we refrain from here concluding that the sentence was illegal because the issue must be first addressed by the trial court, there does appear to be a reasonable probability that petitioner's Yasin challenge will ultimately result in a more favorable sentence.”
Establishes the court's standard for granting relief on ineffective assistance claims while leaving the ultimate merits for the trial court to address initially.
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Join FLexlaw to unlock all legal intelligenceFlowers' direct appeal from a Circuit Court judgment and sentence in Duval County had been affirmed. On collateral review, Flowers claimed his appella…
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[*1234] PER CURIAM.
Michael Flowers petitions this court for relief on a theory of ineffective assistance of appellate counsel. His direct appeal to this court from judgment and sentence of the Circuit Court for Duval County resulted in an affirmance. Flowers v. State, 951 So. 2d 883 (Fla. 1st DCA 2007). For the reasons set forth below, we grant the petition in part, deny it in part, and order commencement of a new appellate proceeding.
Petitioner first claims that his sentence was illegal under the holding of Yasin v. State, 896 So. 2d 875 (Fla. 5th DCA 2005). Appellate counsel, according to petitioner, should have preserved the issue by filing a motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) and, if that motion was denied, raised the issue-on appeal. This theory of ineffective assistance of appellate counsel has been recognized by this court. Evans v. State, 904 So. 2d 638 (Fla. 1st DCA 2005). Although we refrain from here concluding that the sentence was illegal because the issue must be first addressed by the trial court, there does appear to be a reasonable probability that petitioner’s Ya-sin challenge will ultimately result in a more favorable sentence.
Petitioner’s second claim is that a hearing conducted pursuant to Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973) was legally insufficient and that he was prejudiced because he eventually represented himself at trial when he should have been appointed alternate counsel. He argues that his appellate counsel was ineffective in failing to order a transcript of the Nelson hearing. This, too, is a recognized theory which may result in relief in some circumstances. Martone v. State, 867 So. 2d 510 (Fla. 4th DCA 2004).
We find petitioner’s other two claims to be without merit and deny the petition as to them without discussion.
The petition is granted in part and we order commencement of a new appellate proceeding. Shabazz v. State, 955 So. 2d 57 (Fla. 1st DCA 2007). A copy of this opinion will be provided to the clerk of the circuit court upon issuance of mandate, who shall treat it as a timely notice of appeal. If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal. The resulting new appellate proceeding before this court shall be limited to. the two issues described above.
PETITION GRANTED IN PART AND DENIED IN PART.
BROWNING, C.J., ALLEN and THOMAS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Martinez v. State, 123 So. 3d 701 (Fla. 1st DCA 2013)…”). See also Anderson v. State, 988 So. 2d 144, 146 (Fla. 1st DCA 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 o…
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Anderson v. State, 988 So. 2d 144 (Fla. 1st DCA 2008)…zed by law had his offense been classified as a second-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 li…
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Flowers v. State, 69 So. 3d 1042 (Fla. 1st DCA 2011)…him a new appeal, based on a claim of ineffective assistance of appellate counsel, on two issues: whether his minimum mandatory life sentence is illegal, and whether the trial court conducted a legally insufficient Nelson hearing. Flowers v. State, 965 So. 2d 1233 (Fla. 1st DCA 2007). When he took that appeal, we affirmed on the Nelson issue, but granted yet another appeal on the sentencing issue because new appellate counsel failed to preserve it for review by filing a rule 3.800(b) motion. Flowers v. State,…
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
- Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973)
- Mulazim M. Yasin v. State, 896 So. 2d 875 (Fla. 5th DCA 2005)
- Musa Shabazz v. State, 955 So. 2d 57 (Fla. 1st DCA 2007)
- Jermey Dale Garvin v. State, 904 So. 2d 638 (Fla. 1st DCA 2005)
- Thomas v. Martone, 867 So. 2d 510 (Fla. 4th DCA 2004)