Grontkowski v. State

897 So. 2d 497, 2005 Fla. App. LEXIS 2063, 2005 WL 415970

Opinion

PER CURIAM.

Petitioner has filed a Petition for Writ of Habeas Corpus, alleging ineffective assistance of his appellate counsel. We note the attorney who handled petitioner’s direct appeal was also his trial counsel. Petitioner argues that appellate counsel should have argued points which were not preserved at trial by contemporaneous objection or motion. This is not ineffective assistance of appellate counsel. Richards v. State, 809 So.2d 38 (Fla. 5th DCA 2002). Nor do these alleged errors rise to the level of fundamental error. See, e.g., York v. State, 731 So.2d 802 (Fla. 4th DCA 1999).

We reject petitioner’s argument that failure to argue on appeal any of the objected-to issues constituted ineffective assistance, because such would not have changed the outcome of the appeal. Spencer v. State, 842 So.2d 52 (Fla.2003). Accordingly, we deny the petition without prejudice to file a motion pursuant to Florida Rule of Criminal Procedure 3.850.

GUNTHER, POLEN and STEVENSON, JJ., concur.