What Constitutes Ineffective Assistance of Appellate Counsel?

Under construction

The standard for proving ineffective assistance of appellate counsel parallels the Strickland standard for ineffective assistance of trial counsel.

The court considers

  1. Whether the attorney’s alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, if so,
  2. Whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

If a legal issue would in all probability have been found to be without merit even if counsel had raised it on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective. Likewise, appellate counsel is not necessarily ineffective for failing to raise a claim that might have had some possibility of success; effective appellate counsel need not raise every conceivable nonfrivolous issue.

Further, the defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based, and claims of ineffective assistance of appellate counsel may not be used to camouflage issues that should have been presented on direct appeal or in a postconviction motion.

See Zach v. State, 911 So.2d 1190, 1204 (Fla. 2005), and Taylor v. State, 62 So.3d 1101, 1118 (Fla. 2011), internal citations omitted.

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