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finding that counsel had ample time to call favorable decision from another district to court's attention, but failed to do so, so belated appeal granted
Summary of this case from Jones v. StateOpinion
No. 4D00-1567.
Opinion filed August 2, 2000. JULY TERM 2000
Petition for writ of habeas corpus to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Howard M. Zeidwig, Judge; L.T. Case No. 94-3321CF10.
Helene Hvizd Morris, West Palm Beach, for petitioner.
Robert A. Butterworth, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for respondent.
Petitioner William McCann has filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel.
In McCann v. State, 711 So.2d 1290 (Fla. 4th DCA 1998), we affirmed petitioner's conviction for attempted procurement of a person under the age of eighteen for prostitution. Judge Gross dissented, contending that petitioner could only be convicted of solicitation, not procuring. Around the same time our opinion was issued, the first district issued an opinion in Register v. State, 715 So.2d 274 (Fla. 1st DCA 1998), and held that under facts similar to those in McCann's case,there could be no conviction for procurement. Although there was ample time for petitioner's appellate counsel to call our attention in petitioner's case to Register, petitioner's counsel did not do so, and it appears that we were not aware of it.
Not long thereafter, in Kobel v. State, 745 So.2d 979 (Fla. 4th DCA 1999) (en banc), we receded from our decision in McCann's case, and adopted the reasoning of the first district in Register and Judge Gross' dissent in McCann. The state concedes that we should now grant McCann relief. Based on that concession, we grant the petition and reverse the conviction and sentence for attempted procurement. On remand, the trial court shall reduce that charge to solicitation of prostitution and resentence McCann.
GUNTHER, KLEIN and TAYLOR, JJ., concur.