BRIAN FORISSO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed the summary denial of defendant's rule 3.850 post-conviction relief motion because he failed to clearly articulate how trial counsel was ineffective regarding a double jeopardy motion to dismiss, and held that ineffective assistance of appellate counsel claims must be raised via rule 9.141(c) petition.
A rule 3.850 motion for post-conviction relief must clearly specify how trial counsel's performance was deficient and how that deficiency prejudiced the defendant, and claims of ineffective appellate counsel must be raised in a rule 9.141(c) petition.
[1] A rule 3.850 motion for post-conviction relief must clearly articulate the specific deficiency in counsel's performance and the resulting prejudice to satisfy the require…
[2] Claims of ineffective assistance of appellate counsel, including failure to raise issues on appeal, must be raised in a rule 9.141(c) petition rather than a rule 3.850 mo…
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Join FLexlaw to unlock all legal intelligenceBrian Forisso appealed from the summary denial of his rule 3.850 motion for post-conviction relief, which alleged ineffective assistance of trial coun…
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PER CURIAM.
We withdraw our opinion filed on September 26, 2007, and replace it with this opinion.
Brian Forisso (Defendant) appeals from the summary denial without prejudice of his rule 3.850 motion for post-conviction relief, and the order denying his motion for rehearing. We affirm, as his motion does not clearly indicate in what way his trial counsel was ineffective in arguing a motion to dismiss on double jeopardy grounds; he needs to state precisely how his attorney’s performance was deficient, and how that deficiency prejudiced him. We also agree with the state’s response below that any claim alleging ineffective assistance of appellate counsel (including, as the state’s response noted, any ineffectiveness in failing to raise on appeal the trial court’s denial of the motion to dismiss) must be raised in a rule 9.141(c) petition to this court.
Defendant’s statement in his initial brief that a rule 3.850 motion and a rule 9.141(c) motion cannot be filed at the same time is erroneous. See, e.g., Francois v. Klein, 431 So. 2d 165 (Fla.1983) (explaining that motion for postconviction relief and petition for habeas corpus both may be pursued simultaneously because doing so presents no danger of conflicting rulings by different courts on same issues); Baber v. State, 696 So. 2d 490 (Fla. 4th DCA 1997). His deadline for filing either one or both is the same: March 3, 2008, two years after the issuance of this court’s mandate in his direct appeal. The pendency of the instant rule 3.850 proceeding will not toll the time to file a rule 9.141(c) petition.
STONE, KLEIN and HAZOURI, JJ., concur.
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Citator
Cited By
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Jackson v. State, 255 So. 3d 461 (Fla. 3d DCA 2018)
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Johnson v. Fla. Dep't of Corr. (S.D. Fla. 2021)…which a petitioner may file an appeal from the denial of a motion for collateral relief tolls the limitations period). A petitioner may file overlapping collateral motions, so long as there is no “danger of conflicting rulings.” Forisso v. State, 968 So. 2d 677, 678 (Fla. 4th DCA 2007) (citing Francois v. Klein, 431 So. 2d 165, 166 (Fla. 1983)); see Baber v. State, 696 So. 2d 490, 491 (Fla. 4th DCA 1997) (per curiam) (finding that trial court was not divested of subject matter jurisdiction to entertain pet…
Authorities Cited
- Francois v. Klein, 431 So. 2d 165 (Fla. 1983)
- Curt Baber v. State, 696 So. 2d 490 (Fla. 4th DCA 1997)