Hoswell v. State

896 So. 2d 813, 2005 Fla. App. LEXIS 1601, 2005 WL 357026

Opinion

PER CURIAM.

Malcolm Hoswell filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. This court denied the petition without citation and without indicating that denial was “with prejudice” or “on the merits.” Hos-well then filed another habeas petition again raising a claim of ineffective assistance of appellate counsel. This court summarily denied the petition based on Card v. Dugger, 512 So.2d 829, 830 (Fla.1987).

In the instant petition for writ of certio-rari, Hoswell argues that the second petition could not be deemed successive because the first petition was not denied on the merits. See Topps v. State, 865 So.2d 1253 (Fla.2004). Hoswell’s first petition was reviewed and denied on the merits. We deny relief in this proceeding because Topps does not apply to petitions alleging ineffective assistance of appellate counsel under Florida Rule of Appellate Procedure 9.141(c).

STONE, SHAHOOD and GROSS, JJ., concur.