Jones v. State

35 So. 3d 146, 2010 Fla. App. LEXIS 7304, 2010 WL 2076939

Opinion

ROTHENBERG, J.

The defendant seeks habeas corpus relief on the basis of ineffective assistance of appellate counsel. The defendant claims that appellate counsel failed to raise, and should have raised on appeal, that the sentence imposed by the trial court after the defendant violated his probation was vindictive. A review of both the original sentencing transcript placing the defendant on probation and the transcript regarding the subsequent probation violation hearing, however, conclusively refutes any claim of vindictive sentencing. Because appellate counsel cannot be faulted for failing to file a meritless claim, we deny the petition. See Henyard v. State, 883 So.2d 753, 764 (Fla.2004); Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000) (holding that “[i]f a legal issue ‘would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective”).

Petition denied.