DERRIK R. SANDERS, PETITIONER,
v.
HARRY K. SINGLETARY, JR., RESPONDENT
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Derrik Sanders petitioned for a writ of habeas corpus claiming his appellate counsel was ineffective for failing to raise a double jeopardy argument on direct appeal. The court denied the petition, holding that appellate counsel was not ineffective because the double jeopardy issue had not been properly preserved at trial and therefore would have been rejected on appeal.
Appellate counsel was not ineffective because the double jeopardy issue had not been properly preserved at trial and therefore could not have been raised on direct appeal. At the time the brief was filed, the law required double jeopardy claims to be properly preserved in the trial court to be cognizable on direct appeal.
[1] Appellate counsel is not ineffective for failing to raise an issue on direct appeal that was not properly preserved for review in the trial court.
[2] The effectiveness of appellate counsel must be assessed based on the state of the law at the time the appellate brief was filed.
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Join FLexlaw to unlock all legal intelligence“The effectiveness of counsel must be measured by the law in effect at the time the brief was filed.”
Establishes the standard for evaluating appellate counsel's effectiveness in this jurisdiction
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Join FLexlaw to unlock all legal intelligenceSanders was convicted of two counts of resisting arrest with violence arising from a single incident involving two law enforcement officers. He receiv…
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PER CURIAM.
Derrik Sanders petitions this court for a writ of habeas corpus, claiming that his appellate counsel was ineffective. We have jurisdiction, Knight v. State, 394 So. 2d 997 (Fla.1981).
Petitioner was tried and convicted of two counts of resisting arrest with violence. The only issue presented by the public defender in a direct appeal to this court concerned a sentencing guidelines departure. This court found the argument to be without merit and affirmed the judgment and sentences. Sanders v. State, 684 So. 2d 1356 (Fla. 1st DCA 1996). Petitioner contends that, while two law enforcement officers were involved in the incident resulting in the charges, there was only one criminal episode and therefore convictions on two counts and two separate sentences were impermissible. See State v. Watts, 462 So. 2d 813 (Fla.1985); Pierce v. State, 681 So. 2d 873 (Fla. 1st DCA 1996); Spradley v. State, 537 So. 2d 1058 (Fla. 1st DCA 1989). Petitioner argues appellate counsel was ineffective in failing to present this argument on direct appeal.
The effectiveness of counsel must be measured by the law in effect at the time the brief was filed. Thompson v. Wade, 603 So. 2d 28 (Fla. 1st DCA 1992). At the time in question, the law in this district was that a double jeopardy claim is not cognizable on direct appeal unless the issue has been properly preserved in the trial court. Graham v. State, 631 So. 2d 388 (Fla. 1st DCA 1994).1 The double jeopardy issue, had it been raised in the appeal, would have been rejected as not properly preserved. Appellate counsel is not ineffective in failing to present an issue on direct appeal which has not been properly preserved for review. Provenzano v. Dugger, 561 So. 2d 541, 547 (Fla.1990).
Concluding that petitioner has failed to state a facially sufficient claim of ineffective assistance of appellate counsel, the petition for writ of habeas corpus is DENIED.
BARFIELD, C.J., and WEBSTER and LAWRENCE, JJ., concur. . This court recently receded from Graham in Austin v. State, 699 So. 2d 314 (Fla. 1st DCA 1997)(en banc). However, that is not material to our assessment of counsel’s effectiveness when the brief was filed in May 1996.
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Citator
Cited By
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Marcel S. Smith v. Crosby, 872 So. 2d 279 (Fla. 4th DCA 2004)…So. 2d 997, 1003 (Fla.1981)(“The ineffectiveness of appellate counsel cannot be based upon the failure of counsel to assert a theory of law which was not at the time of the appeal fully articulated or established in the law”); Sanders v. Singletary, 707 So. 2d 364 (Fla. 1st DCA 1998); Thompson v. Wade, 603 So. 2d 28 (Fla. 1st DCA 1992). Petitioner asserts that at the time of his conviction and appeal, the controlling law, as set forth in Delgado, required that his conviction for attempted burglary be reverse…
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Watts v. State, 210 So. 3d 720 (Fla. 1st DCA 2017)…ad not yet been decided and the law was otherwise settled in this district. Generally, the law at the time of briefing controls the determination of whether appellate counsel was ineffective for failing to raise an issue. See Sanders v. Singletary, 707 So. 2d 364, 365 (Fla. 1st DCA 1998); Thompson v. Wade, 603 So. 2d 28, 29 (Fla. 1st DCA 1992). “Appellate counsel’s perfonnance must be measured in terms of the law in effect at the time of the appeal, and not in hindsight.” Smith v. Crosby, 872 So. 2d 279, 281…1 / 2
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Hernandez v. State (Fla. 3d DCA 2019)…ierce v. State, 121 So. 3d 1091, 1093 (Fla. 5th DCA 2013) (quoting Lopez v. State, 68 So. 3d 332, 333 (Fla. 5th DCA 2011)). “The effectiveness of counsel must be measured by the law in effect at the time the brief was filed.” Sanders v. Singletary, 707 So. 2d 364, 365 (Fla 1st DCA 1998) (citation omitted); see Thompson v. Wade, 603 So. 2d 28 (Fla 1st DCA 1992) (finding appellate counsel was not ineffective as, at the time the initial brief was filed, the law in effect precluded counsel from raising the issue…1 / 2
Authorities Cited
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Provenzano v. Dugger, 561 So. 2d 541 (Fla. 1990)
- State v. Watts, 462 So. 2d 813 (Fla. 1985)
- Austin v. State, 699 So. 2d 314 (Fla. 1st DCA 1997)
- Tammi Jones v. Yellow CAB OF Pensacola Inc., 681 So. 2d 873 (Fla. 1st DCA 1996)
- Cleveland Spradley, Jr. v. State, 537 So. 2d 1058 (Fla. 1st DCA 1989)
- Thompson v. Wade, 603 So. 2d 28 (Fla. 1st DCA 1992)
- Graham v. State, 631 So. 2d 388 (Fla. 1st DCA 1994)
- Pardo v. Denny's, Inc., 631 So. 2d 388 (Fla. 1st DCA 1994)