Opinion
No. 2D98-4758.
June 2, 2000.
Defendant convicted of carjacking petitioned for writ of habeas corpus, alleging ineffective assistance of counsel. The District Court of Appeal held that appellate counsel's failure to raise denial of motion for continuance on direct appeal prejudiced defendant, and thus amounted to ineffective assistance.
Petition granted.
Larry E. Williams, Pro Se.
Robert A. Butterworth, Attorney General Tallahassee, and Patricia A. McCarthy, Assistant Attorney General, Tampa, for Respondent.
Larry E. Williams petitions this court for a writ of habeas corpus pursuant to Florida Rule of Appellate Procedure 9.140 (j) alleging ineffective assistance of appellate counsel. Williams was convicted after a jury trial of carjacking and sentenced to thirty years' prison. On the morning of trial, Williams' counsel moved for a continuance which was denied. The denial of the motion was not raised on appeal. After a review of the trial record, we conclude that Williams was severely prejudiced by the denial of the continuance. It is also clear from the record that either Williams' trial counsel was ineffective in her attempt to secure the continuance or his appellate counsel was ineffective in failing to raise the denial of that motion on direct appeal.
The State has already successfully defended Williams' claim of ineffective assistance of trial counsel in the trial court, and this court has affirmed. See Williams v. State, 717 So.2d 1019 (Fla. 2d DCA 1998). The law of the case being that trial counsel was not ineffective in her efforts to secure a continuance, we conclude that appellate counsel was ineffective in failing to raise the issue on direct appeal. Having determined that Williams was prejudiced by this error, we vacate his judgment and sentence and remand for a new trial.
Altenbernd, A.C.J., and Blue and Fulmer, JJ., Concur.