Lewis v. State

880 So. 2d 791, 2004 Fla. App. LEXIS 10562, 2004 WL 1584932

Opinion

PER CURIAM.

Jimmy Lee Lewis, who had earlier been convicted of armed robbery with a weapon and sentenced to incarceration for forty years, appeals the summary denial of his Rule 3.850 motion for post-conviction relief.¹ Although Mr. Lewis asserts six claims of ineffective assistance of counsel, we affirm the trial court’s denial of relief on the merits. We comment only on the final claim raised.

Mr. Lewis posits that the trial court intended to sentence him as a youthful offender, and instead sentenced him as an adult. He argues that his counsel was ineffective in not raising this issue on appeal. We note, first, that the claim made by Mr. Lewis is one of ineffectiveness of appellate counsel, and should therefore have been raised by a petition for writ of habeas corpus. See Hamilton v. State, 875 So.2d 586 (Fla. 2004); Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000); Fla. R.App. P. 9.141(c)(2). In order to conserve judicial resources, however, we ordered the sentencing hearing transcribed and have carefully reviewed that document. There is absolutely no indication that the trial judge intended to sentence Mr. Lewis as a youthful offender. •

AFFIRMED.

GRIFFIN, MONACO and TORPY, JJ., concur.

1 . The appellant's conviction was affirmed per curiam without opinion in Lewis v. State, 842 So.2d 130 (Fla. 5th DCA 2003).