Appellate Ineffective for Not Raising Double Jeopardy on Direct Appeal

Charles Ajoloko petitions for a writ of habeas corpus alleging ineffective assistance of appellate counsel for failing to challenge that attempted robbery with a firearm and aggravated assault with a firearm which arose from a single criminal episode, violate double jeopardy.  Failure to raise a valid double jeopardy claim on direct appeal can constitute ineffective assistance of appellate counsel.  Perri v. State, 154 So. 3d 1204, 1205 (Fla. 2d DCA 2015).  A double jeopardy violation is a fundamental error that can be raised for the first time on appeal despite the lack of preservation.  Latos v. State, 39 So. 3d 511, 513 (Fla. 4th DCA 2010).

1998: Jackson v. Leonardo, 162 F.3d 81 (2d Cir. 1998). Counsel’s failure could not be based on any kind of strategy because he failed to raise this sure winner. Despite the fact that the defendant received no additional jail time for the second conviction (sentences were concurrent), not raising a claim of double jeopardy is prejudice because if the defendant were to commit additional criminal offenses in the future, the number of convictions could be considered in some sentencing schemes and guidelines.

 

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