       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 17, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D18-748
                         Lower Tribunal No. 11-31066
                             ________________


                                  Jose Lopez,
                                    Petitioner,

                                        vs.

                         Daniel Junior, etc., et al.,
                                  Respondents.



     A Case of Original Jurisdiction – Habeas Corpus.

     Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for petitioner.

      Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
Attorney General, for respondents.


Before SALTER, EMAS and LINDSEY, JJ.

     PER CURIAM.
      Jose Lopez petitions for writ of habeas corpus, alleging ineffective

assistance of appellate counsel. The State concedes that, on the merits, Lopez is

entitled to relief, but asserts that Lopez is procedurally barred. We grant the

petition, concluding that Lopez is not procedurally barred,1 and that he is entitled

to the relief requested.

      The relevant facts are undisputed. Lopez was convicted of, inter alia,

attempted first-degree murder of Roberto Hernandez, and kidnapping of, and

aggravated battery upon, Yudy Gonzalez. As to the attempted-murder conviction,

the jury specifically found that Lopez used and discharged a firearm, causing great

bodily harm. As to the kidnapping and aggravated battery convictions, the jury

found that Lopez actually possessed a firearm.

      Relevant for our purposes, the trial court sentenced Lopez as follows:

      - Twenty-five years on the attempted murder count, with a twenty-five

          year mandatory minimum pursuant to the 10/20/Life statute. See §

          775.087(2)(a)3., Fla. Stat. (2011));




1 See Marshall v. State, 240 So. 3d 111 (Fla. 3d DCA 2018) (holding that, under
the manifest injustice doctrine, appellate court has discretion to grant relief on a
successive petition alleging ineffective assistance of appellate counsel); Johnson v.
State, 226 So. 3d 908, 910 (Fla. 4th DCA 2017) (holding that an appellate court
has the authority to grant relief “even on a successive petition or claim where
failing to do so would result in a manifest injustice”).

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      - Thirty years on the kidnapping count, with a ten-year mandatory

         minimum pursuant to the 10/20/Life statute. See § 775.087(2)(a)1., Fla.

         Stat. (2011)); and

      - Ten years on the aggravated battery count with a ten-year mandatory

         minimum sentence pursuant to the 10/20/Life statute. See id.

      Pursuant to this Court’s then-controlling decision in Morgan v. State, 137

So. 3d 1075 (Fla. 3d DCA 2014) (Morgan I) the trial court determined that each of

the mandatory-minimum sentences (twenty-five, ten and ten) must be served

consecutively, for an aggregate mandatory minimum sentence of forty-five years.

      Our decision in Morgan I, by which the trial court was bound, held that the

trial court, under these circumstances, is without discretion to impose concurrent

mandatory minimum sentences, and instead must impose those sentences

consecutively. In reaching our holding in Morgan I, we relied on the First District

Court of Appeal’s opinion in Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013)

(Walton I) which likewise held that such sentences must be imposed consecutively.

Both this Court in Morgan I, and the First District in Walton I, certified conflict

with the Fifth District’s decision in Irizarry v. State, 946 So. 2d 555 (Fla. 5th DCA

2006).

      Lopez’s counsel appealed his conviction and sentence, see case no. 3D14-

2543, and in the initial brief, Lopez’s appellate counsel challenged the consecutive



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nature of the mandatory minimum sentences, contending that the trial court should

have had the discretion to consider imposing those sentences concurrently.

Appellate counsel acknowledged our decision in Morgan I and the First District’s

decision in Walton I, but argued that those decisions were in conflict with the Fifth

District’s decision in Irizarry, and asserted that Irizarry represented the more well-

reasoned analysis. Counsel further noted that the Florida Supreme Court had

accepted jurisdiction in Walton I2 to resolve the conflict between Irizarry and

Walton I (and, by extension, our decision in Morgan I, which expressly relied on

Walton I and certified conflict with Irizarry). Counsel requested that, if we affirm,

we certify conflict with Irizarry, as we had done in Morgan I.

        On April 13, 2016, this Court issued a per curiam opinion in Lopez’s appeal,

affirming Lopez’s conviction and sentence with a citation to Morgan I. See Lopez

v. State, 189 So. 3d 1034 (Fla. 3d DCA 2016). By the time we released our

opinion in Lopez, the Florida Supreme Court had already entered a stay of the

proceedings in Morgan I “pending disposition of Walton v. State, Case No. SC13-

1652, which is pending in this Court.” See SC14-757, Order Staying Proceedings

(docketed May 13, 2014). Based upon our citation to Morgan I in the opinion

affirming Lopez’s conviction and sentence, his appellate counsel could have (and

should have) sought discretionary review in the Florida Supreme Court, in an


2   See Walton v. State, 145 So. 3d 830 (Fla. 2014).

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effort to place Lopez in the pipeline so he would receive the benefit of a favorable

resolution of the Florida Supreme Court’s decision in Walton I and Morgan I. See

Persaud v. State, 838 So. 2d 529, 532 (Fla. 2003) (observing that the Florida

Supreme Court’s discretionary review jurisdiction extends to “PCA opinions that

cite as controlling authority ‘a case that is pending review in or has been reversed

by this Court’” (quoting Jollie v. State, 405 So. 2d 418, 421 (Fla. 1981))).

However, Lopez’s appellate counsel failed to file a notice of discretionary review

with the Florida Supreme Court.

      On September 29, 2016, Lopez filed in this Court a pro se petition for writ

of habeas corpus alleging ineffective assistance of appellate counsel and raising

eight separate grounds, none of which included the issue raised in the petition

before this Court. This Court denied that pro se petition on October 13, 2016. See

Lopez v. State, 212 So. 3d 368 (Fla. 3d DCA 2016) (Table).

      Thereafter, two relevant events occurred:

      ● On December 1, 2016, the Florida Supreme Court quashed the First

District’s decision in Walton I and approved the Fifth District’s decision in

Irizarry. Walton v. State, 208 So. 3d 60 (Fla. 2016) (Walton II). In the related

case of Williams v. State, 186 So. 3d 989, 994 (Fla. 2016), the Florida Supreme

Court held that “under the plain language of section 775.087(2)(d), consecutive




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mandatory minimum sentences are not required, but are permissible, if the

sentences arise from a single criminal episode.”

      ● On May 26, 2017, the Florida Supreme Court granted review of our

decision in Morgan I, quashed that decision, and remanded for reconsideration in

light of its decisions in Walton and Williams. See Morgan v. State, 42 Fla. L.

Weekly S680 (Fla. May 26, 2017) (Morgan II).

      Lopez’s original appellate counsel then filed this timely,3 but successive,

petition for writ of habeas corpus.4

      As the State commendably concedes, Lopez is entitled to relief on the

merits.   We assess a claim of ineffective assistance of appellate counsel by

applying in parallel fashion the same two-prong Strickland5 standard of deficient

performance and prejudice applied to claims of ineffective assistance of trial

counsel. Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000). We agree that

appellate counsel’s omission under these circumstances “constituted a serious error

or substantial deficiency falling measurably outside the range of professionally

3 See Fla. R. App. P. 9.141(d) (providing in pertinent part: “A petition alleging
ineffective assistance of appellate counsel on direct review shall not be filed more
than 2 years after the judgment and sentence become final on direct review . . . .”)
In the instant case, Lopez’s judgment and sentence became final on direct appeal
when this Court issued its mandate on April 29, 2016. The instant petition was
filed on April 18, 2018.
4 We commend Mr. Kalter for his candor, for his willingness to acknowledge this

omission, and for his efforts to remedy the present situation.
5 Strickland v. Washington, 466 U.S. 668 (1984).



                                         6
acceptable performance.” Id. (quoting Thompson v. State, 759 So. 2d 650, 660

(Fla. 2000) (additional citation omitted)).

      The resulting prejudice is likewise clear: had appellate counsel sought

discretionary review from our per curiam affirmance (which cited to Morgan I in

reliance upon Walton I), there is a reasonable probability that the Florida Supreme

Court would have done precisely what it did in Morgan: entered a stay of the

proceedings pending disposition of Walton v. State, Case No. SC13-1652, which

was then-pending in the Florida Supreme Court. In doing so, this case would have

been placed in the pipeline, giving Lopez the opportunity to obtain precisely the

same outcome ordered by the Florida Supreme Court in its subsequent decision in

Morgan II: quashal of our decision in Lopez, and a remand to this Court for

reconsideration in light of the Florida Supreme Court’s decision in Walton II and

Williams. Upon remand to this Court, we would have done that which we do now

by this opinion: remanding this cause to the trial court for a resentencing hearing to

determine, in the exercise of its discretion, whether the mandatory minimum

sentences should be served consecutively or concurrently.

      Counsel’s failure to seek discretionary review with the Florida Supreme

Court foreclosed any opportunity for Lopez to be placed in the Walton pipeline,

and we conclude that this omission and its resulting prejudice constituted

ineffective assistance of appellate counsel.



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      We therefore grant the petition, reverse that portion of the sentencing order

directing that mandatory minimum sentences be served consecutively, and remand

this cause to the trial court for the purpose of conducting a resentencing hearing at

which the trial court shall determine, in the exercise of its discretion, whether the

mandatory minimum sentences imposed on Lopez’s attempted murder, aggravated

battery and kidnapping convictions should be served consecutively or

concurrently. Lopez shall be present at the resentencing hearing and shall be

represented by counsel.




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