Smith v. State

Full title: HUGH DON SMITH, Appellant, v. STATE OF FLORIDA, Appellee

Court: District Court of Appeal of Florida, Fifth District

Date published: Feb 13, 1998

707 So. 2d 365 (Fla. Dist. Ct. App. 1998)

Opinion

Case No. 97-764.

Opinion filed February 13, 1998. JANUARY TERM 1998. Rehearing Denied March 24, 1998.

Appeal from the Circuit Court for Volusia County, Shawn L. Briese, Judge.

James C. Lohman, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Roberta J. Tylke, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

AFFIRMED.

GOSHORN and THOMPSON, JJ., concur.

ANTOON, J., concurs specially, with opinion.

ANTOON, J., concurring.

I agree that the denial of the defendant's petition for writ of habeas corpus should be affirmed. However, the affirmance should be without prejudice in order to allow the defendant the opportunity to seek a belated appeal in the second district arguing ineffective assistance of appellate counsel for failng to raise the issue of ex post facto application of the 1989 Habitual Offender Act. See generally Swinson v. State, 588 So.2d 296 (Fla. 5th DCA 1991)(ex post facto application of habitual offender act was fundamental error).