FRANKIE BROWN, JR., PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
Explore caselaw by topic → Browse Facial Unconstitutionality cases and more on FLexlaw
Frankie Brown, Jr., in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), alleges that his appellate counsel was ineffective in failing to argue that section 893.13, Florida Statutes (2008), is unconstitutional on its face based on the reasoning of the Federal District Court in Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011), which held that the statute improperly eliminated mens rea as an element of a drug offense. In this instance, the direct appeal mandate issued on December 12, 2010, which was six months prior to the issuance of Shelton. “The ineffectiveness of appellate counsel cannot be based upon the failure of counsel to assert a theory of law which was not at the time of the appeal fully articulated or established in the law.” Brown v. State, 25 So.3d 78, 80 n. 3 (Fla. 2d DCA 2009) (quoting Alvord v. State, 396 So.2d 184, 191 (Fla.1981)). Accordingly, we deny relief.
Petition denied.
ALTENBERND, CASANUEVA, and KELLY, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
McCLOSKEY v. Dep't OF Fin. Servs., 172 So. 3d 973 (Fla. 5th DCA 2015)…onable basis in law; 2) a reasonable basis in fact; and 3) the reasonable basis, in both law and fact, existed at the time the administrative complaint was filed. See § 57.111(3)(e), Fla. Stat. (2011); Ag. for Health Care Admin. v. MVP Health, Inc., 74 So. 3d 1141, 1143 (Fla. 1st DCA 2011); Dep’t of Health v. Thomas, 890 So. 2d 400, 401 (Fla. 1st DCA 2004). For an action to be substantially justified “the government must have a solid though not necessarily correct basis in fact and law for the position that i…
Authorities Cited
- Alvord v. State, 396 So. 2d 184 (Fla. 1981)
- Brown v. State, 25 So. 3d 78 (Fla. 2d DCA 2009)