DANIEL v. STATE (2023)

The Court denies the petition alleging ineffective assistance of appellate counsel on the merits.

On May 6, 2019, Michael Daniel won on appeal in this court in Case Number 1D18-0516. See Daniel v. State, 271 So. 3d 1214 (Fla. 1st DCA 2019). This court granted precisely the relief that he requested in his initial brief: “vacate the first-degree fleeing or eluding conviction and remand for entry of a judgment of conviction on the lesser included offense of second-degree fleeing or eluding under section 316.1935(3)(a), Florida Statutes,” and for resentencing. Id. at 1215 (emphasis omitted). The State filed a motion for rehearing, which was denied on May 30, 2019. The mandate issued June 20, 2019. The trial court followed that mandate and rendered an amended judgment and sentence, which then was affirmed on appeal on May 25, 2021, in Case Number 1D20-2318.

In his current petition, filed on October 11, 2022, Daniel seemingly does not challenge the performance of his appellate counsel in Case Number 1D20-2318. Instead, he takes issue with the relief this court originally granted him in Case Number 1D18-0516. According to Daniel, this court should not have granted the relief his counsel successfully argued for (viz., vacate the first-degree fleeing-and-eluding conviction in favor of entry of a second-degree one) because that relief still violated the “single homicide rule.”

We should dismiss this petition. Daniel's appellate counsel successfully argued reversible error on his behalf and obtained relief. Daniel does not contend that his counsel failed to assert some other prejudicial error that would have yielded him a better result. His quibble is with the relief that this court granted to remedy that error, but such is not a basis for relief under the petition that Daniel filed. Moreover, to the extent the petition focuses on the representation of his appellate counsel in Case Number 1D18-0516, I suggest that it is filed out of time. Cf. Fla. R. App. P. 9.141(d) (requiring that a petition challenging the effectiveness of appellate counsel be filed within two years of the order on review becoming final).^* Finally, Daniel cannot use the current petition to contest the effectiveness of appellate counsel in Case Number 1D20-2318 (the later appeal) based on a failure to raise his ongoing single-homicide contention there. The amended judgment of conviction simply comported with this court's remand instruction, and it would have been frivolous for his counsel to have attacked the amended judgment on appeal.

I could concur in this panel's disposition to the extent we are telling Daniel he does not get the relief he seeks in his petition. Instead, I dissent because, after nearly four years on the appellate bench, I still cannot fully discern what exactly a denial of a petition “on the merits” means. To me, there is no meaningful difference between a denial “on the merits” and a dismissal of a petition that fails to state a basis for relief, yet at the same time, a “denial” of a petition does not make sense. A trial court does not “deny” a civil complaint “on the merits” when a jury returns a defense verdict, and it does not “deny” a criminal information when the jury finds a defendant not guilty (n.b., in either scenario, the pleading is dismissed with prejudice). Why, then, would an appellate court “deny” a petition seeking original relief, if the petition is essentially the operative pleading?

A disposition of any petition filed in this court invariably will require both an assessment of the averments in the petition and an application of the law to determine whether the petitioner has demonstrated a basis for the exercise of this court's prerogative to grant the requested relief. In this context, dismissal is the only appropriate way to handle a petition that we have determined falls short of stating a case warranting the exercise of that prerogative, which is the situation we have here. That dismissal would be, I guess, “on the merits,” for whatever that is worth (which is to say, not much, since we are talking about this court's inherently extraordinary original writ authority, and not its authority of direct appellate review). But cf. Topps v. State, 865 So. 2d 1253, 1258 (Fla. 2004) (purporting to instruct all “lower tribunals” that “[w]hen a court intends to deny an extraordinary writ petition on the merits, the court need only include in its order a simple phrase such as ‘with prejudice’ or ‘on the merits’ to indicate that the merits of the case have been considered and determined”; but basing this instruction both on a misunderstanding of the respective writ authority of a trial court and an appellate court and on the mistaken assumption that res judicata or collateral estoppel could apply in an appellate court in an original writ proceeding). Obviously, if an appellate court chooses not to entertain what it considers to be a successive original petition, that remains its prerogative, apart from any judicial doctrines or policies.

FOOTNOTES

FOOTNOTE.   I say “suggest” because the language of the rule does not exactly capture the present situation, in which a petitioner challenges the effectiveness of an appellate counsel who achieved total success for him. The terminology in the rule (running the two-year limitation period from “after the judgment and sentence become final on direct review”) supports my view that this type of petition is not available to Daniel. If it were otherwise, then the petition could be used to circumvent the post-conviction process made available through other rules.

Per Curiam.

Lewis and Nordby, JJ., concur; Tanenbaum, J., dissents with opinion.