Flowers v. State
| Decision Date | 28 September 2007 |
| Docket Number | No. 1D07-3328.,1D07-3328. |
| Citation | 965 So.2d 1233 |
| Parties | Michael FLOWERS, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
Michael Flowers petitions this court for relief on a theory of ineffective assistance of appellate counsel. His direct appeal to this court from judgment and sentence of the Circuit Court for Duval County resulted in an affirmance. Flowers v. State, 951 So.2d 833 (Fla. 1st DCA 2007). For the reasons set forth below, we grant the petition in part, deny it in part, and order commencement of a new appellate proceeding.
Petitioner first claims that his sentence was illegal under the holding of Yasin v. State, 896 So.2d 875 (Fla. 5th DCA 2005). Appellate counsel, according to petitioner, should have preserved the issue by filing a motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) and, if that motion was denied, raised the issue on appeal. This theory of ineffective assistance of appellate counsel has been recognized by this court. Evans v. State, 904 So.2d 638 (Fla. 1st DCA 2005). Although we refrain from here concluding that the sentence was illegal because the issue must be first addressed by the trial court, there does appear to be a reasonable probability that petitioner's Yasin challenge will ultimately result in a more favorable sentence.
Petitioner's second claim is that a hearing conducted pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973) was legally insufficient and that he was prejudiced because he eventually represented himself at trial when he should have been appointed alternate counsel. He argues that his appellate counsel was ineffective in failing to order a transcript of the Nelson hearing. This, too, is a recognized theory which may result in relief in some circumstances. Martone v. State, 867 So.2d 510 (Fla. 4th DCA 2004).
We find petitioner's other two claims to be without merit and deny the petition as to them without discussion.
The petition is granted in part and we order commencement of a new appellate proceeding. Shabazz v. State, 955 So.2d 57 (Fla. 1st DCA 2007). A copy of this opinion will be provided to the clerk of the circuit court upon issuance of mandate, who shall treat it as a timely notice of appeal. If petitioner qualifies for appointed counsel, ...
To continue reading
Request your trial
-
Martinez v. State, 1D12–5066.
...raised by rule 3.800(b)(2) motion, ... appellate counsel's failure to do so constitutes ineffective assistance.”); Flowers v. State, 965 So.2d 1233, 1234 (Fla. 1st DCA 2007) (same); Jones v. State, 964 So.2d 855, 856–57 (Fla. 2d DCA 2007) (“Appellate counsel's failure to preserve this sente......
-
Anderson v. State
...by rule 3.800(b)(2) motion, and appellate counsel's failure to do so constitutes ineffective assistance. See, e.g., Flowers v. State, 965 So.2d 1233 (Fla. 1st DCA 2007); Jones v. State, 964 So.2d 855 (Fla. 2d DCA 2007); Mack v. State, 955 So.2d 51 (Fla. 1st DCA 2007); Evans v. State, 904 So......
-
Cole v. Echevarria, Mccalla, Raymer
... ... The class certification order does not state a reason for limiting the class to those who reinstated their mortgages. To the contrary, the findings in the order support the view that the class ... ...
-
Flowers v. State
...mandatory life sentence is illegal, and whether the trial court conducted a legally insufficient Nelson hearing. Flowers v. State, 965 So.2d 1233 (Fla. 1st DCA 2007). When he took that appeal, we affirmed on the Nelson issue, but granted yet another appeal on the sentencing issue because ne......