Brown v. State , 10 So. 3d 656 ( 2009 )

10 So.3d 656 (2009)

Alandrey Peral BROWN, Appellant,
v.
STATE of Florida, Appellee.

No. 1D08-6126.

District Court of Appeal of Florida, First District.

April 3, 2009. Rehearing Denied June 15, 2009.

Lynn W. Martin, Jacksonville, for Appellant.

Bill McCollum, Attorney General, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

HAWKES, C.J., and VAN NORTWICK, J., concur, BROWNING, J., concurs with written opinion.

BROWNING, J., concurs.

In Appellant's original appeal, I dissented from the majority opinion upholding the trial court's failure to grant a continuance. See Brown v. State, 942 So.2d 12 (Fla. 1st DCA 2006) (Browning, J., dissenting). We are now faced with the consequences of such result and must affirm, because Appellant cannot show ineffective assistance of counsel with prejudice. Unfortunately, Appellant's alleged errors were not caused by his counsel, but, in my view, by the trial court's failure to follow existing case law and this court's failure to correct it. A far, far better result would have been achieved had the trial court granted one of Appellant's four motions for a continuance, or this court corrected the trial court's abuse of discretion on direct appeal. I must affirm here, but believe now, as I believed at the time of my dissent, that I was correct. Accordingly, I unenthusiastically concur with the majority opinion.