PHILLIPS PIERRE
v.
STATE OF FLORIDA
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The defendant petitioned for a writ of habeas corpus alleging ineffective assistance of appellate counsel because his appellate counsel failed to raise a prosecutorial misconduct argument that his co-defendant's counsel successfully raised on appeal. The Fourth District Court of Appeal granted the petition, finding that denying the defendant relief while granting it to his similarly situated co-defendant would constitute manifest injustice.
The court granted the petition and vacated the defendant's convictions and sentences. The court held that disparate treatment of similarly situated co-defendants constitutes manifest injustice warranting habeas relief, and remanded the case for a new trial.
[1] Habeas relief for ineffective assistance of appellate counsel may be granted on a successive petition where failing to do so would result in manifest injustice, including…
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Join FLexlaw to unlock all legal intelligenceThe defendant and co-defendant were jointly tried and convicted of first degree murder and attempted first degree murder. On direct appeal, the defend…
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PER CURIAM.
The defendant petitions for a writ of habeas corpus, alleging ineffective assistance of appellate counsel pursuant to Florida Rule of Appellate Procedure 9.141(d). According to the defendant, a manifest injustice has occurred because his appellate counsel failed to raise an argument which his co-defendant’s appellate counsel successfully argued on appeal. We agree with the defendant and therefore grant the petition, vacate the defendant’s convictions and sentences, and remand for a new trial.
The defendant and the co-defendant were convicted of first degree murder and attempted first degree murder following a joint trial. We affirmed the defendant’s convictions on direct appeal. Pierre v. State, 156 So. 3d 1101 (Fla. 4th DCA 2015) (unpublished table opinion).
However, we reversed the co-defendant’s convictions because the prosecutor’s closing argument improperly shifted the burden of proof and invited the jury to convict the defendants for failing to call a certain witness. See Reid v. State, 222 So. 3d 575, 577-79 (Fla. 4th DCA 2017).
Based on the co-defendant’s successful appeal, the defendant now contends that he is entitled to habeas relief because his appellate counsel did not raise the argument that the prosecutor improperly shifted the burden of proof and invited the jury to convict the defendants for failing to call a certain witness.
We agree with the defendant’s argument. As we recently stated in Johnson v. State, 226 So. 3d 908 (Fla. 4th DCA 2017):
This Court has inherent authority to grant a writ of habeas corpus to avoid incongruous and manifestly unfair results. Relief may be granted even on a successive petition or claim where failing to do so would result in manifest injustice.
Disparate treatment of similarly situated co-defendants can result in manifest injustice, warranting habeas relief. To give relief to one co-defendant but deny another co-defendant the same relief under virtually identical circumstances is a manifest injustice that does not promote – in fact, it corrodes – uniformity in the decisions of this court. Id. at 910-11 (internal citations and quotation marks omitted).
Accordingly, we grant the petition, vacate the defendant’s convictions and sentences, and remand for a new trial.
Petition granted; convictions and sentences vacated; remanded for new trial.
GERBER, C.J., FORST and KLINGENSMITH, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.
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Citator
Cited By
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Hollis v. State (Fla. 4th DCA 2020)
Authorities Cited
- Lavoris Johnson v. State, 226 So. 3d 908 (Fla. 4th DCA 2017)
- Reid v. State, 222 So. 3d 575 (Fla. 4th DCA 2017)