Appellate Law

Certified Question: Ineffective Assistance, Now or Then?

By Matt Conigliaro

Should a court declare your attorney ineffective, constitutionally speaking, if raising a point during your representation would have entitled you to relief but the law on which that relief would have been based has now been rejected as incorrect?

In this decision, the Second District said no, but it certified the following to the state supreme court as a question of great public importance:

WHEN A PETITIONER CLEARLY ALLEGES DEFICIENT PERFORMANCE ON THE PART OF APPELLATE COUNSEL BASED ON CASE LAW IN EFFECT AT THE TIME OF THE APPEAL THAT WOULD HAVE RESULTED IN RELIEF HAD APPELLATE COUNSEL RAISED THE ISSUE ON APPEAL BUT THE CASE LAW UPON WHICH THE PETITIONER BASES THE CLAIM IS SUBSEQUENTLY DISAPPROVED, IS THE PETITIONER STILL PREJUDICED BY APPELLATE COUNSEL’S DEFICIENT PERFORMANCE AND THUS ENTITLED TO RELIEF THROUGH A PETITION ALLEGING INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL?

Full post as published by Abstract Appeal on February 07, 2011 (boomark / email).