Brian Kablitz v. State of Florida ( 2015 )


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  •         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    BRIAN KABLITZ,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    No. 4D15-844
    [May 13, 2015]
    Petition alleging ineffective assistance of counsel to the Circuit Court
    for the Fifteenth Judicial Circuit, Palm Beach County; Richard I. Wennet,
    Judge; L.T. Case No. 2004CF003068AXX.
    Brian Kablitz, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
    Melear, Assistant Attorney General, West Palm Beach, for appellee.
    PER CURIAM.
    The petition alleging ineffective assistance of appellate counsel is
    denied. The petition is impermissibly successive as a prior petition was
    denied on the merits in case number 4D14-3516. Petitioner does not
    provide any explanation why this claim could not have been raised in the
    prior petition. Morris v. State, 
    134 So. 3d 1066
    , 1067 (Fla. 4th DCA 2013),
    review denied, 
    139 So. 3d 887
     (Fla. 2014). In addition, the petition lacks
    merit.
    This case has a long history. In relevant part, petitioner was convicted
    after jury trial of petit theft (a lesser offense of grand theft) and dealing in
    stolen property. This Court affirmed on direct appeal. Kablitz v. State,
    
    979 So. 2d 969
    , 970 (Fla. 4th DCA 2008). This Court granted a new appeal
    after finding appellate counsel ineffective for failing to argue fundamental
    error because the jury was not instructed that it could convict of theft or
    dealing in stolen property, but not both. Kablitz v. State, 
    13 So. 3d 155
    (Fla. 4th DCA 2009). In the new appeal, we agreed with appellate counsel
    and ordered a new trial. Kablitz v. State, 
    134 So. 3d 969
    , 970 (Fla. 4th
    DCA 2011) (certifying conflict with Blackmon v. State, 
    58 So. 3d 343
     (Fla.
    1st DCA 2011), which held that the proper remedy was to remand to vacate
    the lesser offense).
    The Florida Supreme Court disagreed with this Court’s holding and
    determined that the proper remedy where the defendant did not raise the
    issue with the trial court was to remand to vacate the petit theft conviction.
    Blackmon v. State, 
    121 So. 3d 535
    , 549 (Fla. 2013). The Florida Supreme
    Court quashed this Court’s decision and remanded “with instructions that
    the case be remanded to the trial court for further proceedings consistent
    with [the] Court’s decision in Blackmon.” State v. Kablitz, 
    136 So. 3d 1122
    ,
    1122 (Fla. 2014). This Court did just that and complied with the Florida
    Supreme Court’s mandate. Kablitz v. State, 
    138 So. 3d 602
     (Fla. 4th DCA
    2014).
    Petitioner now contends that appellate counsel should have argued that
    a different remedy should have been applied in his case and that the trial
    court should have been permitted to choose which of the two offenses to
    vacate. See Anucinski v. State, 
    148 So. 3d 106
    , 107 (Fla. 2014) (holding
    this is the proper remedy where the defendant entered an open plea); cf.
    Williams v. State, 
    121 So. 3d 524
    , 534 (Fla. 2013) (holding that a new trial
    is the proper remedy where the defendant objected to the failure to instruct
    the jury). Petitioner argues that his case is different from Blackmon
    because he did not sell the stolen items, but pawned them and then later
    returned and redeemed them.            He contends the jury in these
    circumstances may have been more likely to find that he was a common
    thief.
    Petitioner fails to establish that appellate counsel performed deficiently.
    In the new appeal he was granted to raise this specific issue, counsel
    argued for a new trial, which was consistent with binding precedent of this
    Court at the time. See Kiss v. State, 
    42 So. 3d 810
    , 811 (Fla. 4th DCA
    2010).
    To the extent that petitioner is arguing that appellate counsel should
    have presented argument following the Florida Supreme Court’s remand
    to this Court, appellate counsel cannot be deemed ineffective for failing to
    present a novel legal argument. Steinhorst v. Wainwright, 
    477 So. 2d 537
    ,
    540 (Fla. 1985) (rejecting claim of ineffective assistance of appellate
    counsel because the argument “had not been recognized as meritorious
    under prevailing law at the time of petitioner’s appeal, nor has it been since
    then” and further explaining that “[t]he failure to present a novel legal
    argument not established as meritorious in the jurisdiction of the court to
    whom one is arguing is simply not ineffectiveness of legal counsel”).
    Petitioner has cited no authority for applying a remedy other than the one
    2
    the Florida Supreme Court found appropriate in Blackmon, where a
    defendant did not object to the failure to instruct the jury. The Florida
    Supreme Court expressly directed that this matter be remanded to the trial
    court to proceed consistent with Blackmon. Appellate counsel cannot be
    deemed deficient in these circumstances.
    Petition denied.
    DAMOORGIAN, C.J., STEVENSON and CONNER, JJ., concur.
    *        *        *
    Not final until disposition of timely filed motion for rehearing.
    3
    

Document Info

Docket Number: 4D15-844

Judges: Damoorgian, Stevenson, Conner

Filed Date: 5/13/2015

Precedential Status: Precedential

Modified Date: 10/18/2024