CARLTON BANNISTER, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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Carlton Bannister petitioned for habeas corpus relief seeking a belated appeal of a trial court order that corrected his sentence for attempted first-degree murder from life to thirty years pursuant to Florida Rule of Criminal Procedure 3.800(b). The Florida District Court of Appeal denied the petition, finding that because the trial court had already granted Bannister's motion to correct the sentence, appellate counsel could not have been ineffective for failing to raise the sentencing issue on direct appeal.
The Court denied Bannister's petition for habeas corpus relief. Appellate counsel did not provide ineffective assistance because the trial court had already corrected the sentence in response to the Rule 3.800(b) motion, so the sentencing issue never ripened into an appellate argument. The Court declined to address Bannister's new claim regarding disparity in sentencing between co-defendants because he failed to raise it with the trial court, but permitted him to file a Rule 3.800(a) motion in circuit court.
[1] A defendant is not entitled to a belated appeal of a sentence correction order when the relief sought was already granted by the trial court.
[2] Ineffective assistance of appellate counsel cannot be established by failing to raise an issue on appeal that was already resolved in the defendant's favor by the trial c…
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“If the trial court corrects the sentence in response to a rule 3.800(b) motion, the sentencing issue will never ripen into an appellate argument.”
Establishes the legal principle that once a trial court grants a Rule 3.800(b) motion, appellate counsel cannot be ineffective for failing to raise the sentencing issue on direct appeal.
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Join FLexlaw to unlock all legal intelligenceOn July 9, 2002, Bannister was convicted of first-degree murder, attempted first-degree murder, and two counts of kidnapping. He initially received li…
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ROTHENBERG, J.
Carlton Bannister (“Bannister”) petitions this Court for habeas corpus relief seeking a belated appeal of an order entered on his July 17, 2002, motion to correct sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(b), which was entered by the trial court on August 8, 2002. We deny Bannister’s petition based upon the following.
On July 9, 2002, Bannister was convicted of first-degree murder (Count I), attempted first-degree murder (Count II), and two counts of kidnapping (Counts III and IV). He received life sentences for Counts I and II, and thirty-year sentences for Counts III and IV. All sentences were ordered to run concurrent.
On July 17, 2002, prior to filing a direct appeal, Bannister filed a motion to correct sentence regarding the attempted first-degree murder conviction charged in Count II. Bannister claimed that the life sentence imposed was illegal as it exceeded the statutory maximum sentence of thirty years. The trial court agreed, and on August 8, 2002, it vacated the life sentence imposed in Count II, sentenced Bannister to thirty years for Count II, and corrected the judgment and sentence accordingly. In this petition, Bannister seeks a belated appeal of this order correcting his sentence.
Subsequent to the trial court’s ruling granting Bannister’s motion to correct the sentence in Count II, on August 14, 2002, Bannister filed a direct appeal. On September 29, 2004, this Court affirmed the judgment of conviction and sentences, Bannister v. State, 880 So. 2d 1292 (Fla. 3d DCA 2004), and this Court issued its mandate on September 24, 2004. In seeking this belated appeal, Bannister claims that appellate counsel provided ineffective assistance of counsel by failing to raise the legality of the sentence imposed for Count II. Because Bannister had previously obtained the relief sought in his rule 3.800(b) motion, appellate counsel obviously did not provide ineffective assistance of counsel by failing to raise the issue on direct appeal. See Carter v. State, 791 So. 2d 525, 527 (Fla. 1st DCA 2001) (“If the trial court corrects the sentence in response to a rule 3.800(b) motion, the sentencing issue will never ripen into an appellate argument.”).
Bannister also attempts to raise a claim regarding the legality of his sentence which he did not raise with the trial court, namely that his sentence is illegal because his co-defendant was sentenced to a lesser sentence of twenty-five years. Because Bannister failed to raise this claim with the trial court, we will not address it on appeal. Bannister is, however, free to file a legally sufficient rule 3.800(a) motion asserting this claim in the circuit court. See Brannon v. State, 850 So. 2d 452, 458 (Fla.2003). We express no opinion on the merits of such a motion.
Petition denied.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ashahleh Sanders-Bashui v. State, 124 So. 3d 1041 (Fla. 3d DCA 2013)…o do so, the State argues that this court should affirm without prejudice to her filing a legally sufficient Florida Rule of Criminal Procedure 3.800(a) motion in the trial court. Brannon v. State, 850 So. 2d 452, 458 (Fla.2003); Bannister v. State, 990 So. 2d 595, 596 (Fla. 3d DCA 2008); Santiago v. State, 870 So. 2d 198, 200 (Fla. 3d DCA 2004); but see Lightsey v. State, 112 So. 3d 616, 618 (Fla. 3d DCA 2013). We agree with the State. Affirmed. . In 2010, the State filed an affidavit of probation violatio…
Authorities Cited
- Brannon v. State, 850 So. 2d 452 (Fla. 2003)
- Carter v. State, 791 So. 2d 525 (Fla. 1st DCA 2001)
- Meltin A. Davis v. State, 880 So. 2d 1292 (Fla. 3d DCA 2004)
- Carlton Bannister v. State, 880 So. 2d 1292 (Fla. 3d DCA 2004)