JOHNSON v. STATE (1997)

District Court of Appeal of Florida,Fourth District.

Gerald JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. 97-1367.

Decided: June 04, 1997

Gerald Johnson, Mayo, pro se. No appearance required for appellee.

Gerald Johnson appeals an order denying his post-conviction motion in which he alleged reversible error and ineffective assistance of his appellate counsel. The trial court properly denied the motion, because neither allegation is a proper subject for a motion filed pursuant to rule 3.850, Florida Rules of Criminal Procedure.

A claim of ineffective assistance of appellate counsel must be raised in a petition for writ of habeas corpus filed in the appellate court. Because rule 9.040(c), Florida Rules of Appellate Procedure, permits this court to treat a case as if the proper remedy had been invoked, we have treated this appeal as a petition for writ of habeas corpus and have considered the merits of Johnson's ineffective assistance claim. The petition is hereby denied.

PER CURIAM.

STONE, WARNER and STEVENSON, JJ., concur.

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