       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 17, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D19-562
                          Lower Tribunal No. 16-9652
                             ________________


                                Frank Evans,
                                    Petitioner,

                                        vs.

                            The State of Florida,
                                   Respondent.



     A Case of Original Jurisdiction – Ineffective Assistance of Appellate
Counsel.

     Frank Evans, in proper person.

     Ashley Moody, Attorney General, for respondent.


Before EMAS, C.J., and SCALES and MILLER, JJ.

     PER CURIAM.
        Frank Evans filed a petition for writ of habeas corpus, alleging his appointed

appellate counsel rendered ineffective assistance by failing to raise certain claims

on the direct appeal from Evans’ conviction and sentence for aggravated battery.

Included in Evans’ petition are claims that appellate counsel (1) failed to raise

several instances of trial counsel’s ineffective assistance; and (2) failed to raise an

unpreserved error (the trial court’s failure to provide the jury with a written version

of the final instructions delivered orally to the jury).

        We deny the petition, as each of Evans’ asserted claims is without merit.1

See Gomez v. State, 44 Fla. L. Weekly D529 (Fla. 3d DCA Feb. 20, 2019)

(holding a claim of ineffective assistance of trial counsel is generally not

cognizable on direct appeal); Smith v. State, 194 So. 3d 483, 488 n. 2 (Fla. 3d

DCA 2016) (same). See also Spencer v. State, 842 So. 2d 52, 73 (Fla. 2003)

(holding appellate counsel cannot be deemed ineffective for failing to raise an error

not preserved for appeal, unless the unpreserved error is fundamental); Nibert v.

State, 508 So. 2d 1, 3 (Fla. 1987) (holding that failure to provide jury with written

jury instructions was not fundamental error and was waived on direct appeal where

not properly preserved).

        Petition denied.


1   We deny Evans’ other claims without further discussion.

                                            2
