DONELL JACKSON, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Donell Jackson petitioned for relief from his armed robbery conviction and life sentence, claiming his appellate counsel was ineffective for withdrawing under Anders without identifying arguable issues. The Fourth District Court of Appeal reconsidered its prior precedent and addressed Jackson's claims on the merits, ultimately denying the petition after finding no reversible error.
The court receded from its prior holding in Johnson v. Moore and held that a defendant may seek relief for ineffective assistance of appellate counsel even when counsel withdraws under Anders and the defendant fails to file his own brief. On the merits, Jackson's claims lacked merit: the trial court did not err in failing to instruct on a lesser included offense because Jackson's counsel specifically requested no such instructions; no Brady violation occurred because withheld evidence was not proven; the enhanced sentence did not violate Blakely; and restitution was properly ordered.
[1] A defendant whose appellate counsel withdraws under Anders v. …
[2] A defendant may not claim error regarding the failure to instruct on a lesser included offense when the defense was mistaken identification and counsel, with the defendan…
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Join FLexlaw to unlock all legal intelligence“In Johnson v. Moore, 744 So.2d 1042 (Fla. 4th DCA 1999), this court held that a defendant whose counsel has withdrawn under Anders, and who has failed to file his own brief, cannot seek relief for ineffective assistance of appellate counsel.”
Establishes the prior precedent that the court receded from, setting up the central issue in the case.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJackson was convicted of armed robbery and sentenced to life imprisonment. His appellate counsel filed a motion to withdraw pursuant to Anders v. Cali…
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KLEIN, J.
Donell Jackson has filed this petition alleging that his appellate counsel rendered ineffective assistance on his direct appeal. In that appeal, counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), certifying that there were no arguable issues for reversal of his conviction for armed robbery and life sentence. Jackson was given the opportunity to file his own brief identifying any matter that he felt this court should address, but he did not do so. This court then conducted its own independent review of the rec ord, and after finding no basis for reversal, dismissed the appeal.
In Johnson v. Moore, 744 So. 2d 1042 (Fla. 4th DCA 1999), this court held that a defendant whose counsel has withdrawn under Anders, and who has failed to file his own brief, cannot seek relief for ineffective assistance of appellate counsel. Two of our sister courts have disagreed with Johnson. See Hollinger v. State, 749 So. 2d 534, 535 (Fla. 5th DCA 1999); and Barber v. State, 918 So. 2d 1013 (Fla. 2d DCA 2006). We are persuaded by those opinions that we should recede from Johnson. We accordingly do so and address the petition on the merits.
Appellant alleges error in the lower court’s failure to instruct on a lesser included offense; however, the record shows that appellant’s defense was mistaken identification, and his counsel, with appellant’s agreement, specifically requested no lesser included instructions be given. Next appellant argues a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); however, the record shows that the evidence about which appellant complains was not withheld by the state. Appellant’s claim of error in the imposition of an enhanced sentence, as violating Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), is without merit, as is his claim that the court imposed an order of restitution without notice or a hearing. We accordingly deny the petition and recede from Johnson v. Moore, 744 So. 2d 1042 (Fla. 4th DCA 1999).
STEVENSON, C.J., GUNTHER, STONE, WARNER, POLEN, FARMER, SHAHOOD, GROSS, TAYLOR, HAZOURI and MAY, JJ., concur.
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Citator
Cited By
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Riley v. State, 25 So. 3d 1 (Fla. 1st DCA 2008)…87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The fact that Riley could have raised the jury instruction issue in a pro se brief does not foreclose him from now seeking relief on a claim of ineffective assistance of appellate counsel. See Jackson v. State, 946 So. 2d 83 (Fla. 4th DCA 2006); Barber v. State, 918 So. 2d 1013 (Fla. 2d DCA 2006). Likewise, the fact that the court could have identified the error at issue in the course of its independent Anders review does not preclude his present claim.…
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Galante v. State (Fla. 4th DCA 2026)…of ineffective assistance of appellate counsel, nor does the fact that the court could have identified the error in the course of its independent Anders review.” Towbridge v. State, 45 So. 3d 484, 486 (Fla. 1st DCA 2010); see also Jackson v. State, 946 So. 2d 83 (Fla. 4th DCA 2006); Barber v. State, 918 So. 2d 1013, 1015-1016 (Fla. 2d DCA 2006). Second, it is well settled that "[a]ppellate counsel may be ineffective for failing to raise claims of fundamental error.” Sheppard v. State, 338 So. 3d 803, 830 (…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Brady v. Maryland, 373 U.S. 83 (U.S. 1963)
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004)
- Barber v. State, 918 So. 2d 1013 (Fla. 2d DCA 2006)
- Johnson v. Moore, 744 So. 2d 1042 (Fla. 4th DCA 1999)
- Fletcher E. Hollinger v. State, 749 So. 2d 534 (Fla. 5th DCA 1999)