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Johnson v. State

Florida Court of Appeals, Fourth District

August 23, 2017

LAVORIS JOHNSON, Petitioner,
v.
STATE OF FLORIDA, Respondent.

         Not final until disposition of timely filed motion for rehearing.

         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 ...

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