MALCOLM HOSWELL, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT

Fla. 4th DCA | 2005-02-16
No. 4D04-4907
STONE, SHAHOOD and GROSS, JJ., concur.
896 So. 2d 813 Florida District Court of Appeal, Fourth District (2005)


Opinion of the Court
PER CURIAM.

PER CURIAM.

Malcolm Hoswell filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. This court denied the petition without citation and without indicating that denial was “with prejudice” or “on the merits.” Hos-well then filed another habeas petition again raising a claim of ineffective assistance of appellate counsel. This court summarily denied the petition based on Card v. Dugger, 512 So. 2d 829, 830 (Fla.1987).

In the instant petition for writ of certiorari, Hoswell argues that the second petition could not be deemed successive because the first petition was not denied on the merits. See Topps v. State, 865 So. 2d 1253 (Fla.2004). Hoswell’s first petition was reviewed and denied on the merits. We deny relief in this proceeding because Topps does not apply to petitions alleging ineffective assistance of appellate counsel under Florida Rule of Appellate Procedure 9.141(c).

STONE, SHAHOOD and GROSS, JJ., concur.


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