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Florida District Courts of Appeal, 1998

Smith v. State

Smith v. State
Florida District Courts of Appeal · Decided February 13, 1998 · Antoon, Goshorn, Thompson
707 So. 2d 365; 1998 Fla. App. LEXIS 1196; 1998 WL 55992 (Southern Reporter, Second Series)

Smith v. State

Opinion of the Court

PER CURIAM.

AFFIRMED.

GOSHORN and THOMPSON, JJ., concur. ANTOON, J., concurs specially, with opinion.

Concurring Opinion

ANTOON, Judge,

concurring.

I agree that the denial of the defendant’s petition for writ of habeas corpus should be affirmed. However, the affirmance should be without prejudice in' order to allow the defendant the opportunity to seek a belated appeal in the second district arguing ineffective assistance of appellate counsel for failng to raise the issue of ex post facto application of the 1989 Habitual Offender Act. See generally Swinson v. State, 588 So.2d 296 (Fla. 5th DCA 1991)(eic post facto application of habitual offender act was fundamental error).

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