final until disposition of timely filed motion for rehearing.
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.
Jay Bernstein of David Jay Bernstein, P.A., Deerfield Beach,
Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for
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
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
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