SEAN PERRI, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Sean Perri petitioned for relief from ineffective assistance of appellate counsel under Florida Rule of Appellate Procedure 9.141(d). The court granted the petition on one ground, finding that appellate counsel failed to raise a valid double jeopardy claim regarding dual convictions for felon in possession of a firearm and possession of ammunition, and remanded with directions to vacate the ammunition conviction.
The court granted the petition on ground three, finding that appellate counsel was ineffective for failing to raise the double jeopardy claim. The court held that dual convictions for felon in possession of a firearm and felon in possession of the ammunition in that firearm violate double jeopardy protections, and the proper remedy is vacation of the conviction for the lesser offense.
[1] A conviction for possession of a firearm by a convicted felon and a separate conviction for possession of ammunition by a convicted felon arising from the same incident v…
[2] A double jeopardy claim is not waived by an open plea when the violation is fundamental, apparent from the record, and the defendant has not indicated a waiver.
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“because "any" precedes the list of items a felon is prohibited from possessing, double jeopardy precludes more than one conviction for possession of any of the items listed”
Establishes the legal principle that dual convictions for felon in possession of different items listed in the statute violate double jeopardy
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Join FLexlaw to unlock all legal intelligencePerri was charged with numerous offenses after fleeing from law enforcement. He was convicted by jury of some charges and then entered an open plea to…
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Sean Perri has filed a petition alleging ineffective assistance of appellate counsel under Florida Rule of Appellate Procedure 9.141(d) raising four grounds. The State concedes the validity of ground three, and we grant the petition with regard to that ground; we deny the remaining grounds without further comment.
Mr. Perri was charged with numerous offenses after he fled from law enforcement officers who tried to stop his vehicle based on a tip that he was in possession of drugs and a firearm. Two of the offenses — possession of ammunition by a convicted felon and possession of a firearm by a convicted felon1 — were severed from the others. After a jury found Mr. Perri guilty of the other offenses, he entered an open plea to the possession charges, and the trial court sentenced him as a habitual felony offender to concurrent terms of *1205thirty years’ imprisonment with a three-year mandatory minimum for the possession of a firearm. Appellate counsel raised one issue on appeal concerning the trial court’s failure to dismiss three of the other counts with which Mr. Perri was charged.
In ground three of his petition, Mr. Per-ri argues that appellate counsel was ineffective for failing to argue on appeal that his convictions of possession of a firearm by a convicted felon and possession of the ammunition in the firearm by a convicted felon violated his double jeopardy rights. See Boyd v. State, 17 So.3d 812, 818 (Fla. 4th DCA 2009) (holding that because “any” precedes the list of items a felon is prohibited from possessing, double jeopardy precludes more than one conviction for possession of any of the items listed) (citing Hill v. State, 711 So.2d 1221, 1224-25 (Fla. 1st DCA 1998)); accord Bell v. State, 122 So.3d 958, 960-61 (Fla. 2d DCA 2013) (citing Boyd and holding that separate convictions for a felon’s possession of ammunition found in his pocket and a firearm found in his car’s glove compartment after he was arrested for a traffic violation violated double jeopardy); Strain v. State, 77 So.3d 796, 797 (Fla. 4th DCA 2011) (holding that dual convictions of possession of a firearm by a convicted felon and possession of ammunition by a convicted felon violated double jeopardy). The State concedes that appellate counsel was ineffective in this regard, correctly noting that although this issue was not preserved for appeal, it is one of fundamental error that is not waived by the entry of an open plea. See Novaton v. State, 634 So.2d 607, 609 (Fla.1994) (noting that a plea does not preclude a later double jeopardy claim when it was not the result of a plea bargain, the double jeopardy violation is apparent from the record, and the record contains no indication that the defendant waived the violation); Hunt v. State, 769 So.2d 1109, 1110 (Fla. 2d DCA 2000) (relying on Novaton).
Had appellate counsel raised this issue in Mr. Perri’s direct appeal, we would have been constrained to reverse his conviction and sentence for possession of ammunition by a convicted felon. See Olivard v. State, 831 So.2d 823, 824 (Fla. 4th DCA 2002) (noting that the proper remedy for a double jeopardy violation through dual convictions is the vacation of the conviction for the lesser offense). Accordingly, we deny grounds one, two, and four of Mr. Perri’s petition, but we grant the petition as it relates to ground three. Because a new appeal would be redundant, we remand with directions for the trial court to vacate Mr. Perri’s conviction and sentence for possession of ammunition by a convicted felon.2
Petition granted in part and denied in part.
KHOUZAM and SLEET, JJ., Concur.
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Delgado v. State, 174 So. 3d 1071 (Fla. 5th DCA 2015)…149 (Fla. 5th DCA 2009) (citing Crites v. State, 959 So. 2d 1265, 1267 (Fla. 5th DCA 2007)). As such, the failure to raise a valid double jeopardy claim on direct appeal may constitute ineffective assistance of appellate counsel. See Perri v. State, 154 So. 3d 1204, 1205 (Fla. 2d DCA 2015) (citing Novaton v. State, 634 So. 2d 607, 609 (Fla.1994)). Delgado contends that appellate counsel was ineffective for failing to argue on appeal that his dual convictions for robbery and assault violated his double jeopard…
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Weitz v. State, 229 So. 3d 872 (Fla. 2d DCA 2017)…rror that may be raised for the first time on appeal, Mizner v. State, 154 So. 3d 391, 399 (Fla. 2d DCA 2014), the.failure to raise a double jeopardy violation on appeal can constitute ineffective assistance of appellate counsel, see Perri v. State, 154 So. 3d 1204, 1205 (Fla. 2d DCA 2015). To determine whether Mr. Weitz is entitled to relief, we must first ask whether his appellate counsel rendered deficient performance by failing to argue that his dual convictions for unlawful use of a two-way communication…
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Baptiste v. State, 165 So. 3d 746 (Fla. 4th DCA 2015)…both home invasion robbery and burglary, which arose from a single criminal episode, violate double jeopardy. Failure to raise a valid double jeopardy claim on direct appeal can constitute ineffective assistance of appellate counsel. Perri v. State, 154 So. 3d 1204, 1205 (Fla. 2d DCA 2015). A double jeopardy violation is a fundamental error that can be raised for the first time on appeal despite the lack of preservation. Latos v. State, 39 So. 3d 511, 513 (Fla. 4th DCA 2010). An open plea does not waive the er…
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
- Novaton v. State, 634 So. 2d 607 (Fla. 1994)
- Hill v. State, 711 So. 2d 1221 (Fla. 1st DCA 1998)
- Erickson Olivard v. State, 831 So. 2d 823 (Fla. 4th DCA 2002)
- Terranton Hunt v. State, 769 So. 2d 1109 (Fla. 2d DCA 2000)
- Boyd v. State, 17 So. 3d 812 (Fla. 4th DCA 2009)
- Bell v. State, 122 So. 3d 958 (Fla. 2d DCA 2013)
- Ernie Terrell Strain v. State, 77 So. 3d 796 (Fla. 4th DCA 2011)