JAMES HUBERT STEWART, JR.

v.

STATE OF FLORIDA

NARDELLA, J.

James Hubert Stewart, Jr. petitions this court for habeas corpus relief, alleging several claims of ineffective assistance of appellate counsel.¹

We grant the petition as it relates to the reclassification of Count III and authorize a new appeal as to that issue only. In all other respects, the petition is denied. A petitioner claiming ineffective assistance of appellate counsel must show counsel’s performance was deficient and the deficient performance prejudiced the petitioner by undermining confidence in the appellate result. Farina v. State, 937 So. 2d 612, 626 (Fla. 2006) (citing Wilson v. Wainwright, 474 So. 2d 1162, 1163 (Fla. 1985)). We find that Stewart has satisfied both prongs, thus entitling him to a new appeal.

In 2014, Stewart shot his girlfriend, Stephanie Nyen, within earshot of several witnesses. Attempting to cover his tracks, Stewart enlisted David Lopez to kill the witnesses, one of whom survived. Subsequently, Stewart was charged with two counts of first-degree murder with a firearm and two counts of attempted first-degree murder with a firearm. As to Count III, attempted first-degree murder with a firearm, a jury convicted Stewart as a principal based upon actions directly committed by his co-defendant David Lopez. In contrast to the other counts, the jury did not return a specific finding on the verdict form that Stewart carried, displayed, used, threatened to use, or attempted to use any weapon or firearm during the commission of the crime for which he was charged in Count III.

Attempted first-degree murder is a first-degree felony. See § 777.04(4)(b), Fla. Stat. Here, however, the trial court entered a judgment listing Count III as a life felony. Stewart argues in his petition that this was error and that his appellate counsel should have challenged the trial court’s reclassification of Count III. Specifically, Stewart argues that the trial court erroneously enhanced his sentence for Count III where the jury returned no special verdict that he possessed a weapon during the actions giving rise to Count III of the indictment.

Stewart is correct. Under certain circumstances, attempted first-degree murder can be reclassified to a life felony under section 775.087(1), Florida Statutes. See Julian v. State, 302 So. 3d 1048, 1049 (Fla. 5th DCA 2020). However, the reclassification provision in section 775.087(1) cannot be applied using the principal theory. Id. at 1050 (citing Roberts v. State, 923 So. 2d 578, 580 (Fla. 5th DCA 2006)). Because Stewart was prosecuted under the principal theory with respect to Count III, and no finding was made by the jury that Stewart carried, displayed, used, threatened to use, or attempted to use a weapon or firearm, appellate counsel should have raised the reclassification of Count III on appeal. Id. at 1050–51; Parker v. State, 906 So. 2d 1273, 1273 (Fla. 5th DCA 2005); State v. Rodriguez, 602 So. 2d 1270, 1272 (Fla. 1992). Since this issue was not raised, we conclude appellate counsel’s performance was deficient and undermined confidence in the outcome of the appeal. Julian, 302

So. 3d at 1051 (citing Dill v. State, 79 So. 3d 849, 851 (Fla. 5th DCA 2012)). Accordingly, we grant Stewart a new appeal as to this issue only. This opinion shall be filed with the lower tribunal and treated as the notice of belated appeal of the judgment and sentence. Upon receipt, the clerk of the lower court shall certify a copy of this opinion to this court in accordance with Florida Rule of Appellate Procedure 9.040(g). The appeal shall proceed under a new case number, which shall be assigned upon receipt in this court of the certified opinion. All time requirements of the Florida Rules of Appellate Procedure shall run from the date of this opinion. If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal. PETITION GRANTED. SASSO, C.J., and COHEN, J., concur. James Hubert Steward, Jr., Raiford, pro se.

Ashley Moody, Attorney General, Tallahassee, and Daniel P. Caldwell, Assistant Attorney General, Daytona Beach, for Appellee.