       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           LAVORIS JOHNSON,
                               Petitioner,

                                     v.

                          STATE OF FLORIDA,
                             Respondent.

                              No. 4D16-3571

                             [August 23, 2017]

   Petition alleging ineffective assistance of counsel to the Circuit Court
for the Seventeenth Judicial Circuit, Broward County; Ilona M. Holmes,
Judge; L.T. Case No. 08-CF-14517.

   David Jay Bernstein of David Jay Bernstein, P.A., Deerfield Beach,
petitioner.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for
respondent.

PER CURIAM.

    Lavoris Johnson petitions the Court for a writ of habeas corpus,
alleging ineffective assistance of appellate counsel. Fla. R. App. P.
9.141(d). We find that appellate counsel’s failure to raise the trial court’s
error in denying Johnson’s motion to suppress resulted in manifest
injustice, where we reversed co-defendant Lorenzo Sanchez’s conviction
on that basis. See Sanchez v. State, 199 So. 3d 472 (Fla. 4th DCA), rev.
denied, No. SC16-1833, 2016 WL 6603971 (Fla. Nov. 8, 2016). We
therefore grant the petition, vacate Johnson’s conviction and sentence for
second degree murder, and remand for a new trial.

   In Sanchez, we summarized the facts of this case as follows:

         On the morning of July 30, 2008, there was a robbery at
      AMIGO Food Store in Pompano Beach, Florida. During the
      robbery, gunshots were fired and the store owner was killed.
      Several 911 calls prompted law enforcement to broadcast
      BOLOs about the suspects. . . .

         ....

          Starting at 9:52 a.m., a few minutes after the robbery,
      several BOLOs were broadcast. Prior to the first officer’s
      arrival at the scene, the BOLOs described Haitian males
      fleeing westbound from the store on foot. From 9:52 a.m. until
      10:02 a.m., the police stopped every black male near the
      convenience store—some were on foot, others on bicycles.

         The arresting officer received a radio call at approximately
      9:56 a.m. and arrived near the perimeter of the crime scene
      within 2–4 minutes. The only BOLO he heard was for “two
      black males fleeing westbound from the store.” At the time of
      the stop, the officer had no further information about the
      suspects—he had received no information describing clothing
      or a vehicle.

          While driving within a few blocks of the crime scene, the
      arresting officer saw two black males in a red Dodge Charger
      travelling northbound and then eastbound. The two cars
      passed one another going in opposite directions. The officer
      observed the driver's dreadlocks and noted that the passenger
      was seated in the rear seat furthest away from the driver. The
      passenger wore a white t-shirt and a large hat the officer later
      described as an “old grandma church hat, or turban/1930's
      flapper hat drawn down to his eyebrows.” Neither the driver
      nor the passenger made eye contact with the officer, which the
      officer found suspicious.

         Although the arresting officer witnessed no traffic violation,
      the sum of the odd seating arrangement, the backseat
      passenger’s funny looking hat, and lack of eye contact, in
      conjunction with the outstanding BOLO, prompted the officer
      to make a U-turn and perform a traffic stop. After the officer
      activated his lights and the vehicle slowed down, the officer
      noticed a third black male in the front passenger seat. The
      arresting officer and an assisting officer approached the car
      with guns drawn.

199 So. 3d at 473-74. Johnson was the passenger in the front seat, while
co-defendant Sanchez was the passenger in the back seat.

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   Johnson and Sanchez were each charged with first-degree felony
murder. Both defendants moved to suppress the traffic stop, arguing that
the officer lacked reasonable suspicion. The trial court denied the motion
after a joint hearing. Sanchez was convicted as charged. Johnson was
convicted of second degree murder as a lesser included offense and
sentenced to forty years in prison.

   Johnson’s appellate counsel did not raise the denial of the motion to
suppress on direct appeal. We affirmed his conviction and sentence per
curiam. Johnson v. State, 149 So. 3d 25 (Fla. 4th DCA 2014). Sanchez’s
counsel did raise the issue, and we reversed his conviction, holding that
the trial court erred in denying the motion to suppress the traffic stop
because the officer lacked reasonable suspicion. Sanchez, 199 So. 3d at
475-78.

   In this timely petition, Johnson argues that his appellate counsel was
ineffective for failing to argue that the trial court erred in denying the
motion to suppress. The State argues that the petition should be
dismissed as successive because Johnson filed a previous petition alleging
ineffective assistance of appellate counsel on different grounds, which was
denied. 1 Johnson agrees that we have discretion to dismiss the petition
as successive, but maintains that we must grant relief to prevent a
manifest injustice. We agree.

   This Court has “inherent authority to grant a writ of habeas corpus to
avoid incongruous and manifestly unfair results.” Stephens v. State, 974
So. 2d 455, 457 (Fla. 2d DCA 2008). Relief may be granted even on a
successive petition or claim where failing to do so would result in manifest
injustice. Figueroa v. State, 84 So. 3d 1158, 1162 (Fla. 2d DCA 2012);
Stephens, 974 So. 2d at 457.

    Disparate treatment of similarly situated co-defendants can result in
manifest injustice, warranting habeas relief. See, e.g., McKay v. State, 988
So. 2d 51 (Fla. 3d DCA 2008) (granting relief on an untimely petition
alleging ineffective assistance of appellate counsel, where a co-defendant’s
convictions were vacated on the same issue); see also Haager v. State, 36
So. 3d 883 (Fla. 2d DCA 2010) (reversing a sentence on appeal from the
denial of a postconviction motion, finding that failure to do so would result
in manifest injustice where the same relief was granted to a co-defendant

1“The Court may dismiss a second or successive petition if it does not allege new
grounds and the prior determination was on the merits, or if a failure to assert
the grounds was an abuse of procedure.” Fla. R. App. P. 9.141(d)(6)(C).


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and others); Harris v. State, 12 So. 3d 764, 765 (Fla. 3d DCA 2008)
(recognizing that “disparate treatment of co-defendants can result in
manifest injustice,” although “inconsistent decisions in separate,
unrelated cases do not constitute disparate treatment”). To give relief to
one co-defendant but deny another co-defendant the same relief under
virtually identical circumstances “is a manifest injustice that does not
promote–in fact, it corrodes–uniformity in the decisions of this court.”
Stephens, 974 So. 2d at 457.

    We are mindful that our authority to grant a writ of habeas corpus
based on manifest injustice should only be exercised in “uncommon and
extraordinary circumstances.” Id. at 457-58. However, we find that this
case presents one of those rare circumstances. Failing to grant Johnson
the same relief afforded to Sanchez, under virtually identical
circumstances, would be an “incongruous and manifestly unfair” result.
Id. at 457. Accordingly, we grant the petition.

   We find it unnecessary to allow a new direct appeal, as such a
proceeding would be redundant to Sanchez’s direct appeal. See, e.g.,
Grant v. State, 189 So. 3d 878, 882 (Fla. 4th DCA 2016) (granting relief on
a petition alleging ineffective assistance of appellate counsel and reversing
petitioner’s conviction and sentence where a new direct appeal would be
redundant and unnecessary). We therefore vacate Johnson’s conviction
and sentence for second degree murder and remand for a new trial.

    Petition granted. Conviction and sentence vacated; remanded for a new
trial.

WARNER, LEVINE and CONNER, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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