DAVID MACK III
v.
STATE OF FLORIDA
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A defendant cannot raise an ineffective assistance of appellate counsel claim for an issue that was identified in the Anders brief and considered by the appellate court during its mandatory independent review, as the affirmance constitutes a determination that the defendant received effective assistance.
[1] A claim for ineffective assistance of appellate counsel is not cognizable when the issue raised was identified in the Anders brief and the appellate court affirmed.
[2] An affirmance by an appellate court following an Anders brief constitutes a determination that the appellant received constitutionally guaranteed effective assistance of…
Previewing 2 of 3 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“Under this mandated process, an affirmance by the appellate court in essence is the court's determination that the appellant has received his constitutionally guaranteed right to effective assistance from counsel.”
Court's explanation of why an affirmance precludes subsequent ineffective assistance claims for issues identified in the Anders brief.
Petitioner David Mack III filed a habeas corpus petition claiming his appellate counsel failed to raise an issue on direct appeal; however, that issue…
The full statement of facts, procedural history, and disposition for this case are member content.
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February 21, 2024 TANENBAUM, J.
The petitioner claims his appellate counsel missed an issue that in fact was identified in the Anders brief filed by that counsel in his underlying direct appeal to this court. This court affirmed in that case. There simply cannot be a cognizable claim for ineffective assistance of appellate counsel in this situation because the panel in the underlying appeal presumably conducted its own “full and independent review of the record to discover any arguable issues apparent on the face of the record.” In re Anders Briefs, 581 So. 2d 149, 151 (Fla. 1991) (citing Anders v. California, 386 U.S. 738, 744 (1967)); see Towbridge v. State, 45 So. 3d 484, 487 (Fla. 1st DCA 2010) (explaining that “with respect to an issue that was apparent on the face of the record,” there is not a cognizable claim “because the issue was necessarily considered by the court in its Anders
review,” especially “where, as here, the issue that is the basis of the claim of ineffective assistance of appellate counsel was identified by counsel in the Anders brief”). Under this mandated process, an affirmance by the appellate court in essence is the court’s determination that the appellant has received his constitutionally guaranteed right to effective assistance from counsel. The same appellant does not later get a second bite of that apple through Florida Rule of Appellate Procedure 9.141(d).
DISMISSED. B.L. THOMAS and M.K. THOMAS, JJ., concur.
_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Towbridge v. State, 45 So. 3d 484 (Fla. 1st DCA 2010)