PATRICK O'LEARY, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Patrick O'Leary petitioned for a writ alleging ineffective assistance of appellate counsel for counsel's failure to file a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error. The court held that such omission constitutes a cognizable claim of ineffective assistance, rejecting the State's argument that the claim could be pursued through alternative procedural remedies.
The court held that the failure of appellate counsel to file a rule 3.800(b)(2) motion to correct sentencing error constitutes a cognizable claim in a petition alleging ineffective assistance of appellate counsel. The availability of alternative procedural remedies is irrelevant to whether appellate counsel's performance was deficient.
[1] The failure of appellate counsel to file a motion to correct sentencing error constitutes a cognizable claim in a petition alleging ineffective assistance of appellate co…
[2] To establish a claim of ineffective assistance of appellate counsel, a petitioner must show specific errors or omissions that demonstrate appellate counsel's performance…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The failure of appellate counsel to file a rule 3.800(b)(2) motion to correct sentencing error constitutes a cognizable claim in a petition alleging ineffective assistance of appellate counsel.”
Establishes that omissions regarding sentencing correction motions can form the basis of ineffective assistance claims
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceO'Leary's appellate counsel failed to file a rule 3.800(b)(2) motion to correct sentencing error regarding the allegedly improper inclusion of victim …
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We deny Patrick O’Leary’s petition alleging ineffective assistance of appellate counsel filed pursuant to Florida Rule of Appellate Procedure 9.141(c). We write only to address the State’s argument that O’Leary cannot establish that he was prejudiced by appellate counsel’s failure to file a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error with regard to the allegedly improper inclusion of victim injury points on the sentencing guidelines scoresheet because this claim of scoresheet error can be raised in a Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence.
The failure of appellate counsel to file a rule 3.800(b)(2) motion to correct sentencing error constitutes a cognizable claim in a petition alleging ineffective assistance of appellate counsel. Agosto-Molina v. State, 933 So.2d 26 (Fla. 2d DCA 2006); Barber v. State, 918 So.2d 1013 (Fla. 2d DCA 2006); Horne v. State, 918 So.2d 1011 (Fla. 2d DCA 2006); Hakkenberg v. State, 889 So.2d 935 (Fla. 2d DCA 2004); Gisi v. State, 848 So.2d 1278 (Fla. 2d DCA 2003). To establish a claim of ineffective assistance of appellate counsel, the petitioner must show specific errors or omissions that demonstrate that appellate counsel’s performance differed from the norm and that the deficiency of the performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result. Downs v. Moore, 801 So.2d 906, 909-10 (Fla.2001). Thus, a petitioner must demonstrate prejudice with regard to the result of the direct appeal from the judgment and sentence. The fact that he may ultimately be able to obtain the same relief by way of a different procedural vehicle, such as a rule 3.800(a) motion filed in the circuit court, is irrelevant to the merits of the claims raised in a petition alleging ineffective assistance of appellate counsel.
Petition denied.
FULMER and LaROSE, JJ„ Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Boyington v. State, 125 So. 3d 327 (Fla. 1st DCA 2013)…assessed as part of a lump sum, which was error. As such, appellate counsel’s failure to file a rule 3.800(b)(2) motion to correct the sentencing error constitutes a cognizable claim for ineffective assistance of appellate counsel. O’Leary v. State, 2 So. 3d 358, 359 (Fla. 2d DCA 2008). “The fact that he may ultimately be able to obtain the same relief by way of a different procedural vehicle, such as a rule 3.800(a) motion filed in the circuit court, is irrelevant to the merits of the claims raised in a pe…
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Williams v. State, 29 So. 3d 327 (Fla. 5th DCA 2010)…la. R.App. P. 9.141(c). Williams asserts that appellate counsel should have filed a motion, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), to correct his sentence prior to the filing of his initial brief. See generally O’Leary v. State, 2 So. 3d 358 (Fla. 2d DCA 2008); Barber v. State, 918 So. 2d 1013 (Fla. 2d DCA 2006). Williams contends that he was illegally sentenced to thirty years’ incarceration as a Prison Releasee Reoffender (PRR) for a second-degree felony. Williams pled no contest to…
Authorities Cited
- Downs v. Moore, 801 So. 2d 906 (Fla. 2001)
- Gisi v. State, 848 So. 2d 1278 (Fla. 2d DCA 2003)
- Hakkenberg v. State, 889 So. 2d 935 (Fla. 2d DCA 2004)
- Agosto-Molina v. State, 933 So. 2d 26 (Fla. 2d DCA 2006)
- Barber v. State, 918 So. 2d 1013 (Fla. 2d DCA 2006)
- Horne v. State, 918 So. 2d 1011 (Fla. 2d DCA 2006)