final until disposition of timely filed motion for rehearing.
Petition alleging ineffective assistance of appellate counsel
to the Seventeenth Judicial Circuit, Broward County; Edward
H. Merrigan, Judge; L.T. Case No. 12016631CF10A.
Malove, Fort Lauderdale, for petitioner.
Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for
GERBER, C. JUDGE
defendant, pursuant to Florida Rule of Appellate Procedure
9.141(d), petitions that he received ineffective assistance
of appellate counsel on his direct appeal, primarily because
the direct appeal did not argue that the trial court applied
the incorrect legal standard in denying the defendant's
motion for new trial. We grant the petition on this ground
only. We remand for the trial court to reconsider the
defendant's motion for new trial under the correct legal
present this opinion in the following five sections:
1. The procedural history;
2. The standard of review for a petition alleging ineffective
assistance of appellate counsel;
3. Review of the incorrect legal standard argument;
4. Review of the instant case and similar precedent; and
5. Distinguishing the instant case from recent precedent.
state charged the defendant with aggravated battery with a
firearm. The evidence showed that the defendant was involved
in an argument with a man who was hanging out with a small
group of people outside of a business. The defendant
eventually got a gun from his nearby truck, fired two shots
towards the group, and drove off. One of the shots struck a
woman in the group.
claimed that he fired warning shots in self-defense and did
not intend to hit anyone. At trial, defense counsel
cross-examined the woman about her inconsistent statements
regarding whether it appeared to her that the defendant was
trying to shoot towards the group or was just trying to scare
the jury convicted the defendant as charged, defense counsel
moved for a new trial, arguing in part that, pursuant to
Florida Rule of Criminal Procedure 3.600(a)(2), the verdict
was contrary to the weight of the evidence. Defense counsel
reminded the court about the woman's inconsistent