Hamilton v. Moore ( 2001 )

PER CURIAM.

Anthony Hamilton petitions this court for a writ of habeas corpus, arguing that his appellate counsel was ineffective in failing to argue that the state failed to prove every element of the crime with which he was charged, sale of cocaine. He contends the state did not prove that the substance in question was, in fact, cocaine. He informs this court, however, that his trial counsel stipulated to the genuineness of the cocaine. We therefore find that appellate counsel cannot be faulted for failing to raise this issue as it was not properly preserved for appeal, Provenzano v. Dugger, 561 So.2d 541 (Fla.1990), and the petition is denied for that reason. This disposition does not address the effectiveness of trial counsel in entering into the stipulation and therefore it is without prejudice to Hamilton’s right to present such an argument to the trial court in a motion for postconviction relief.

PETITION DENIED.

BARFIELD, C.J., ALLEN and BROWNING, JJ., concur.