THOMAS V. MARTONE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Martone petitioned for habeas corpus alleging ineffective assistance of appellate counsel. The court granted the petition in part, finding that appointed appellate counsel was not provided with critical portions of the trial record, denying counsel the ability to properly review the conviction for error.
Martone is entitled to relief because his appellate counsel was not provided with the entire trial record, which precluded meaningful appellate review. However, a new trial is not necessary; instead, Martone is entitled to new appellate counsel, the complete record, and a belated appeal on meritorious issues. The two remaining ineffective assistance claims are denied without prejudice.
[1] Appointed appellate counsel's failure to receive the complete trial record, including testimony transcripts, charging documents, motions, hearings, and jury instructions,…
[2] A petitioner is entitled to a belated appeal when appellate counsel was not furnished with the complete record, and the missing portions were necessary for a complete rev…
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Join FLexlaw to unlock all legal intelligence“The right to notice 'plain errors or defects' is illusory if no transcript is available at least to one whose lawyer on appeal enters the case after the trial is ended.”
Establishes why missing records were particularly damaging to appellate counsel who was not trial counsel
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Join FLexlaw to unlock all legal intelligenceMartone's appellate counsel was appointed after trial and was not furnished with the complete trial record during the appeal. Missing from the record …
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PER CURIAM.
Thomas Martone petitions this court for a writ of habeas corpus alleging his appellate counsel provided ineffective assistance. We grant, in part, and deny, in part, the petition as follows.
The petitioner is entitled to relief due to the fact his appointed appellate counsel was not furnished with the entire record during the pendency of petitioner’s appeal. It is important to note petitioner’s appellate counsel was not his trial counsel; thus, the missing records were especially damaging to petitioner’s direct appeal. See Hardy v. United States, 375 U.S. 277, 280, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964) (“The right to notice ‘plain errors or defects’ is illusory if no transcript is available at least to one whose lawyer on appeal enters the case after the trial is ended.”).
Several important pieces of the record were never provided to the petitioner’s appellate counsel, thus “preclud[ing] appellate counsel from evaluating [these] portion[s] of the trial for error.” See Jones v. State, 780 So. 2d 218 (Fla. 2d DCA 2001); see also Delap v. State, 350 So. 2d 462 (Fla.1977); Lipman v. State, 428 So. 2d 733 (Fla. 1st DCA 1983).
The record provided to the appellate attorney was missing testimony transcripts for two state witnesses, the charging documents, pre-trial and post-trial motions and hearings, and the jury instructions. We conclude these missing portions of the record were necessary for a complete review of the petitioner’s convictions. Cf. Velez v. State, 645 So. 2d 42 (Fla. 4th DCA 1994); see Jones. Thus, the petition is granted.
However, granting a new trial is not necessary at this point, because the records do not appear to have been permanently lost or destroyed. Instead, the petitioner is entitled to have new appellate counsel appointed, the complete record furnished to said counsel, and a belated appeal on any meritorious issue raised from the missing portions of the record. See generally Fair v. Crosby, 858 So. 2d 1103, 1103-04 (Fla. 4th DCA 2003).
Finally, the two remaining claims of ineffective assistance of appellate counsel are denied, without prejudice. Each claim of deficient assistance relates to an error, if it exists, that could have been noticed only had the full record been provided to the appellate attorney. Since these records were not provided to the attorney, the failure to advance these claims cannot be ineffective assistance of counsel. Instead, once the petitioner is appointed new counsel and the full record transmitted to said counsel, if the issues raised herein are of colorable merit, the petitioner shall be entitled to raise them once again.
STONE, KLEIN and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Flowers v. State, 965 So. 2d 1233 (Fla. 1st DCA 2007)…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.…
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Prettyman v. State, 951 So. 2d 27 (Fla. 5th DCA 2007)…timely decision would have done. This is by far the oldest pending case in this court; it is past time to decide it. . See generally Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). . Petitioner relies on Martone v. State, 867 So. 2d 510 (Fla. 4th DCA 2004) as an appellate decision that may be in conflict with these decisions. The Fourth District court concluded in Martone that the missing portions of the record were necessary for a complete review of Martone’s convictions, and thus…
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Martone v. State, 921 So. 2d 879 (Fla. 4th DCA 2006)…ut opinion. Martone v. State, 787 So. 2d 868 (Fla. 4th DCA 2001). Martone filed a petition for writ of habeas corpus based on appellate counsel’s having not been furnished the entire record during the pendency of his direct appeal. Martone v. State, 867 So. 2d 510 (Fla. 4th DCA 2004). This court granted relief and, as a result, this belated appeal follows. Martone now complains that the trial court erred by giving the new standard jury instruction on principals set forth in 1995 because the criminal conduct…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hardy v. United States, 375 U.S. 277 (U.S. 1964)
- Delap v. State, 350 So. 2d 462 (Fla. 1977)
- Fair v. Crosby, 858 So. 2d 1103 (Fla. 4th DCA 2003)
- Velez v. State, 645 So. 2d 42 (Fla. 4th DCA 1994)
- Jones v. State, 780 So. 2d 218 (Fla. 2d DCA 2001)
- Lewis v. State, 428 So. 2d 733 (Fla. 1st DCA 1983)