DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
EDNOL A. HANNA, III,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D20-2945
September 29, 2021
Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Highlands County; Peter F. Estrada, Judge.
LABRIT, Judge
Ednol A. Hanna, III, appeals the dismissal of his motion for
postconviction relief filed pursuant to Florida Rule of Criminal
Procedure 3.850. We reverse for further proceedings consistent
with this opinion.
Background
In 2005, Mr. Hanna and three codefendants were convicted of
robbery with a firearm and other related offenses stemming from a
bank robbery. Mr. Hanna was a juvenile at the time of the offenses
but was prosecuted and convicted as an adult. He was sentenced
to life in prison for the charge of robbery with a firearm.
On direct appeal, this court affirmed Mr. Hanna's conviction
and sentence. Hanna v. State,
963 So. 2d 236 (Fla. 2d DCA 2007)
(table decision). Thereafter, he filed his first motion for
postconviction relief, which was denied after an evidentiary hearing
in 2011. Mr. Hanna appealed that decision and this court affirmed.
Hanna v. State,
132 So. 3d 887, 887 (Fla. 2d DCA 2014).
Eventually, pursuant to Graham v. Florida,
560 U.S. 48 (2010), Mr.
Hanna filed a motion to correct illegal sentence pursuant to Florida
Rule of Criminal Procedure 3.800. The motion was granted, and
Mr. Hanna was resentenced to a term of forty years in prison with a
review after twenty years pursuant to sections 921.1402(2)(d) and
775.083(3)(c), Florida Statutes (2018). Mr. Hanna did not appeal.
Instead, he filed a motion for postconviction relief, alleging that his
counsel was ineffective during his resentencing hearing. The
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postconviction court dismissed the claim as not cognizable under
Florida law and untimely. Mr. Hanna then filed the current appeal.
Standard of Review
An appellate court reviews de novo a trial court's legal
conclusions made in ruling on a postconviction motion. Nelson v.
State,
43 So. 3d 20, 28 (Fla. 2010); see also Freeman v. State,
761
So. 2d 1055, 1061 (Fla. 2000) ("[A] defendant is entitled to an
evidentiary hearing on a postconviction relief motion unless (1) the
motion, files, and records in the case conclusively show that the
[defendant] is entitled to no relief, or (2) the motion or a particular
claim is legally insufficient.").
Analysis
Cognizable Claim
The postconviction court first reasoned that Mr. Hanna's
claims were not cognizable under Florida law because a defendant
"has no constitutional right to effective collateral counsel." See
Zack v. State, 911 So. 2d 1190, 1203 (Fla. 2005). As a general
proposition this is correct. See
id. ("[C]laims of ineffective
assistance of postconviction counsel do not present a valid basis for
relief."). However, "[i]neffective assistance of postconviction counsel
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is not a cognizable claim in Florida, because there is no
constitutional entitlement to the appointment of postconviction
counsel." Netting v. State, 129 So. 3d 429, 432 (Fla. 1st DCA 2013)
(emphasis added); see also Kokal v. State,
901 So. 2d 766, 777 (Fla.
2005) ("Because Kokal does not possess a constitutional right to
postconviction counsel, and further, because we have refused to
recognize claims of ineffective assistance of postconviction counsel,
Kokal's claim regarding the ineffectiveness of counsel's
representation of Kokal during his first postconviction litigation was
properly summarily denied.").
By contrast, the Sixth Amendment "guarantees the right to
effective assistance of counsel at all critical stages of a criminal
prosecution." Taylor v. State, 87 So. 3d 749, 758 (Fla. 2012).
"Trial, sentencing[,] and direct appeal are all critical stages at which
a defendant is entitled to counsel." Padgett v. State,
743 So. 2d 70,
72 (Fla. 4th DCA 1999) (citing Smith v. State,
590 So. 2d 1078,
1078 (Fla. 2d DCA 1991)). This is true "whether the sentence is the
immediate result of adjudication of guilt or, as here, the sentence is
the result of an order directing the trial court to resentence the
defendant." See Griffin v. State,
517 So. 2d 669, 670 (Fla. 1987). At
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resentencing, "the full panoply of due process considerations
attach, including the appointment of counsel." Payne v. State,
38
So. 3d 827, 828 (Fla. 1st DCA 2010). This includes entitlement to
counsel at resentencing after prevailing on a rule 3.800 motion.
See Mahone v. State,
39 So. 3d 1278, 1279 (Fla. 5th DCA 2010).
Thus, the general prohibition on claims of ineffective
assistance of postconviction counsel is not applicable to Mr.
Hanna's situation. Counsel who represents a defendant at
resentencing following a successful postconviction motion is not
"collateral counsel" and is subject to the same constitutional
strictures as trial counsel. Consequently, Mr. Hanna has raised a
cognizable claim for postconviction relief, and the postconviction
court erred by dismissing the motion on this ground.
Timeliness
The postconviction court alternatively dismissed Mr. Hanna's
motion as untimely. This calculation of time was based on the
underlying conviction, which occurred more than two years ago.
See Fla. R. Crim. P. 3.850(b) (providing a time limit of two years
"after the judgment and sentence become final"). Yet, as stated
above, resentencing is a new proceeding. See State v. Collins, 985
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So. 2d 985, 989 (Fla. 2008). Therefore, the calculation of time for
the 3.850 motion should begin with the resentencing hearing—the
source of the allegedly ineffective assistance. When no appeal is
filed, a "judgment and sentence do not become 'final' for purposes of
. . . rule [3.850] until the thirty-day period for filing an appeal
expires." Mingo v. State,
790 So. 2d 1164, 1164 (Fla. 2d DCA 2001).
Because Mr. Hanna did not appeal his new sentence, it became
final thirty days after it was imposed.
The postconviction court misapprehended the distinction and
relied upon cases that are procedurally distinguishable from this
one. See, e.g., Gillis v. State,
32 So. 3d 681, 682 (Fla. 2d DCA 2010)
(holding that resentencing from a successful rule 3.800 motion did
not toll the time for a rule 3.850 motion attacking the defendant's
underlying convictions); O'Neill v. State,
6 So. 3d 630, 630 (Fla. 2d
DCA 2009) (same); Marrero v. State,
967 So. 2d 934, 936 (Fla. 2d
DCA 2007) (same). Because Mr. Hanna's claims are not directed to
his underlying conviction but instead challenge his counsel's
performance at his resentencing, Mr. Hanna's motion was timely.
Consequently, the postconviction court erred by dismissing the
motion on this ground.
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In summary, the postconviction court erred by dismissing the
motion as not cognizable and untimely. The court should have
addressed the merits of the claims, and we reverse and remand for
it to do so. See, e.g., White v. State,
298 So. 3d 694, 695 (Fla. 2d
DCA 2020).
Reversed and remanded with instructions.
VILLANTI and BLACK, JJ., Concur.
Opinion subject to revision prior to official publication.
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