final until disposition of timely filed motion for rehearing.
of Original Jurisdiction -- Habeas Corpus Lower Tribunal No.
& Associates, Chartered, and Roy D. Wasson, for
Moody, Attorney General, and Linda Katz, Assistant Attorney
General, for respondent.
LOGUE, LINDSEY, and MILLER, JJ.
PARTIAL CONFESSION OF ERROR
Orlando Hernandez, seeks habeas corpus relief alleging
ineffective assistance of appellate counsel pursuant to
Florida Rule of Appellate Procedure 9.141(d). Upon the
State's proper and commendable partial concession of
error, and in accord with our precedent in Rua-Torbizco
v. State, 255 So.3d 462 (Fla. 3d DCA 2018) and Lopez v.
Junior, 259 So.3d 202 (Fla. 3d DCA 2018), we remand for
resentencing pursuant to Williams v. State, 186
So.3d 989 (Fla. 2016).
a jury trial, Hernandez was convicted of attempted
first-degree murder, aggravated battery, and aggravated
assault. The jury expressly found Hernandez possessed and
discharged a firearm during the commission of the attempted
first-degree murder, and possessed a firearm while committing
both the aggravated battery and aggravated assault.
lower tribunal sentenced Hernandez to forty-years
imprisonment with a twenty-year minimum mandatory for the
attempted murder conviction, ten years, as a minimum
mandatory, for the aggravated battery conviction, and three
years, as a minimum mandatory, for the aggravated assault
conviction. Adhering to the belief it was bound by our
decision in Morgan v. State, 137 So.3d 1075 (Fla. 3d
DCA 2014), the court imposed all minimum mandatory sentences
consecutively, culminating in a total minimum mandatory
sentence of thirty-three years. See Lopez, 259 So.3d
at 203-04 ("[I]n Morgan . . .[we] held that the
trial court, under these circumstances, [was] without
discretion to impose concurrent minimum mandatory sentences,
and instead [was required to] impose those sentences
direct appeal, Hernandez's appellate counsel raised two
issues: (1) whether the State's willful withholding of
exculpatory evidence constituted a violation of Brady v.
Maryland,  and (2) whether the trial court erred in
denying a motion for new trial given the State's failure
to heed its discovery obligations. The appeal was per curiam
affirmed. See Hernandez v. State, 229 So.3d 1236
(Fla. 3D DCA 2016).
the instant petition, Hernandez asserts his appellate counsel
was ineffective for failing to further raise the issue that
imposition of consecutive minimum mandatory sentences was
discretionary, rather than mandatory, contrary to our holding
in Morgan. In reviewing Hernandez's petition,
"we must determine whether counsel's performance was
deficient and, if so, whether 'the deficiency of that
performance compromised the appellate process to such a
degree as to undermine confidence in the fairness and
correctness of the appellate result.'" Pierce v.
State, 121 So.3d 1091, 1093 (Fla. 5th DCA 2013) (quoting
Lopez v. State, 68 So.3d 332, 333 (Fla. 5th DCA
effectiveness of counsel must be measured by the law in
effect at the time the brief was filed." Sanders v.
Singletary, 707 So.2d 364, 365 (Fla 1st DCA 1998)
(citation omitted); see Thompson v. Wade, 603 So.2d
28 (Fla 1st DCA 1992) (finding appellate counsel was not
ineffective as, at the time the initial brief was filed, the
law in effect precluded counsel from raising the issue on
appeal); Smith v. Crosby, 872 So.2d 279, 281 (Fla.
4th DCA 2004) ("Appellate counsel's performance must
be measured in terms of the law in effect at the time of the
appeal, and not in hindsight.") (citing Knight v.
State, 394 So.2d 997, 1003 (Fla. 1981);
Sanders, 707 So.2d 364; Thompson, 603 So.2d
28). Here, after Hernandez filed his notice of direct appeal,
but before his initial brief was filed, the Florida Supreme
Court abrogated any compulsory requirement to impose
consecutive minimum mandatory sentences, under these
circumstances. As explicated in Rua-Torbizco,
In Morgan, we held "that section 775.087(2)(d)
unambiguously requires that any mandatory minimum term
required by section 775.087(2) - whether the defendant fires
a gun, or only carries or displays it - shall be imposed
consecutively to any other term imposed for any other
felony." Id. (quotation omitted). The Fourth
District Court of Appeal in Williams v. State, 125
So.3d 879 (Fla. 4th DCA 2013) (en banc), decision
quashed, 186 So.3d 989 (Fla. 2016), also held that
"consecutive mandatory minimum sentences are
required by section ...