PERRY
v.
STATE OF FLORIDA
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A petition for ineffective assistance of appellate counsel is deficient and must be dismissed when the petitioner merely challenges counsel's decision to file an Anders brief, a process that inherently includes the court's independent review of the record and the petitioner's opportunity to file a pro se brief.
[1] A petition for ineffective assistance of appellate counsel is facially deficient under Florida Appellate Rule 9.141(d)(4)(F) when the petitioner fails to specify a partic…
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Join FLexlaw to unlock all legal intelligence“the district court of appeal 'assumes the responsibility of conducting a full and independent review of the record to discover any arguable issues apparent on the face of the record'”
Court explaining the mandatory Anders process that already provides the review Perry seeks
Keith Perry's appellate counsel filed an Anders brief stating she was unable to argue reversible error and requesting that Perry be allowed to file a …
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D2023-2475 _____________________________
KEITH G. PERRY,
Petitioner,
v.
STATE OF FLORIDA,
Respondent. _____________________________
Petition Alleging Ineffective Assistance of Appellate Counsel— Original Jurisdiction.
August 28, 2024
TANENBAUM, J.
Keith Perry submitted a petition averring that his appellate counsel was ineffective for filing an Anders brief in his direct appeal. In that brief, counsel stated she was “unable to argue reversible error,” asking that Perry be allowed “a reasonable period of time in which to file a pro se brief.” Perry in fact did file his own brief. This court affirmed without opinion. The petition now before us is deficient on its face, as it fails to state even an arguable basis for relief. Florida Appellate Rule of Procedure 9.141(d)(4)(F) requires the petitioner to swear to “specific acts . . . that constitute the alleged ineffective assistance of counsel.” What is the act Perry specifies? The failure by his
2 appellate counsel “to take a ‘Conscientious examination’ of the record and [to] decide[] to file an Anders Brief without following the rules under [] Anders.” This assertion is entirely obviated by the Anders process mandated by the supreme court. See State v. Causey, 503 So. 2d 321, 322 (Fla. 1987) (requiring district courts to “examine the record to the extent necessary to discover any errors apparent on the face of the record” upon receipt of Anders brief); In re Anders Briefs, 581 So. 2d 149, 151 (Fla. 1991) (providing that, “[u]pon counsel’s submission of the motion to withdraw accompanied by an Anders brief, the indigent must be given the opportunity to file a pro se brief,” after which, the district court of appeal “assumes the responsibility of conducting a full and independent review of the record to discover any arguable issues apparent on the face of the record” (emphasis supplied)). Perry essentially is asking us to afford him review he already received under that process. Indeed, not only did he already get a comprehensive record-review from us, as required by the supreme court, but he also received additional consideration once he filed a motion for rehearing in the underlying appeal. He cannot use the petition made available by rule 9.141(d)(4) to get yet another bite at the apple.
DISMISSED.
B.L. THOMAS and NORDBY, JJ., concur.
_____________________________
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________
Keith G. Perry, pro se, Petitioner.
Ashley Moody, Attorney General, Tallahassee, for Respondent.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Causey, 503 So. 2d 321 (Fla. 1987)
- In re App. Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991)