LAMONT CLIFFORD KING, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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King petitioned for relief claiming his appellate counsel was ineffective for failing to raise two potentially meritorious issues on direct appeal: insufficient evidence for the "entered" element of burglary and exclusion of impeachment evidence. The court granted the petition in part and ordered a new appellate proceeding to address these issues.
Appellate counsel was ineffective for failing to raise these two potentially meritorious issues. The appropriate remedy is to grant the petition in part and order a new appellate proceeding limited to these two issues so the appellate court may determine their merits.
[1] Appellate counsel is ineffective when failing to raise potentially meritorious issues identified by the petitioner.
[2] A potentially meritorious issue exists when the state presents insufficient evidence to prove an element of burglary, specifically the "entered" requirement.
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Join FLexlaw to unlock all legal intelligence“petitioner's counsel on direct appeal was ineffective for failing to raise two potentially meritorious issues identified by petitioner”
Establishes the court's finding of ineffective assistance of appellate counsel
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Join FLexlaw to unlock all legal intelligenceKing was convicted of burglary in Duval County Circuit Court. At trial, the state presented evidence of the burglary charge, but defense counsel did n…
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Lamont Clifford King presents a timely claim of ineffective assistance of appellate counsel. We conclude based on the arguments of the parties and portions of the record before us at this point that petitioner’s counsel on direct appeal was ineffective for failing to raise two potentially meritorious issues identified by petitioner. The first concerns the trial court’s denial of petitioner’s motion for judgment of acquittal, in which defense counsel argued that the state had presented insufficient evidence to prove the element of burglary requiring that the defendant be shown to have “entered” a structure. The second relates to the trial court’s actions in precluding defense counsel from questioning a witness concerning discrepancies between her trial testimony and statements she made during 911 calls. We find no merit to petitioner’s other claims and deny the petition as to them without further discussion.
Accordingly, the petition is granted in part, and under the circumstances of this case, we conclude that the appropriate remedy is to order the commencement of a new appellate proceeding. See Marrero v. State, 967 So.2d 934 (Fla. 2d DCA 2007) (where a claim of ineffective assistance of appellate counsel is successful, the remedy is to award petitioner a new appeal in order that the appellate court may determine the merits of the issue(s) that should have been raised in the original appeal). Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal, who shall treat it as a timely notice of appeal of the judgment and sentence in Duval County Circuit Court case number 16-2006-CF-12374-AXXX. If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal. The resulting new appellate proceeding shall be limited to the two issues described above.
BARFIELD, KAHN, and WEBSTER, JJ., concur.
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Jenkins v. State, 75 So. 3d 1288 (Fla. 1st DCA 2011)…ive for failing to present this issue. Accordingly, the petition alleging ineffective assistance of appellate counsel is granted. Under the circumstances of this case, we conclude that the proper remedy is to order a new appeal. See King v. State, 15 So. 3d 27 (Fla. 1st DCA 2009). Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal directed to petitioner’s judgment and sentence in Escambia County Circuit Court case numb…
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Jahman Whitfield v. State, 202 So. 3d 456 (Fla. 5th DCA 2016)…State, 79 So. 3d 849, 851 (Fla. 5th DCA 2012) (alteration in original) (quoting Freeman v. State, 761 So. 2d 1055, 1069 (Fla.2000)). The failure to raise a potentially meritorious issue can constitute deficient performance. See, e.g., King v. State, 15 So. 3d 27, 28 (Fla. 1st DCA 2009) (granting new appeal due to appellate counsel’s failure to raise two potentially meritorious issues). This standard parallels the standard for ineffectiveness of trial counsel under Strickland v. Washington, 466 U.S. 668, 104…
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Unterrio Bernardo Julian v. State (Fla. 5th DCA 2020)…ess of the result. 2 Dill v. State, 79 So. 3d 849, 851 (Fla. 5th DCA 2012) (quoting Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000)). The failure to raise a potentially meritorious issue can constitute deficient performance. E.g., King v. State, 15 So. 3d 27, 28 (Fla. 1st DCA 2009) (granting new appeal due to appellate counsel’s failure to raise two potentially meritorious issues). This standard parallels the standard for ineffectiveness of trial counsel under Strickland v. Washington, 466 U.S. 668 (198…
Authorities Cited
- Marrero v. State, 967 So. 2d 934 (Fla. 2d DCA 2007)