4D08-959-Whitmore v. State

State: Florida

Court: Florida Southern District Court

Docket No: 4D08-959.op.dss

Case Date: 02/03/2010

Plaintiff: 4D08-959-Whitmore

Defendant: State

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2010

JAMES WHITMORE, Petitioner, v. STATE OF FLORIDA, Respondent. Nos. 4D08-959 & 4D08-3102 [ February 3, 2010 ] TAYLOR, J. In these consolidated cases, James Whitmore appeals the trial court's summary denial of his Rule 3.850 motion, which alleged ineffective assistance of his trial counsel, and petitions for a writ of habeas corpus, alleging ineffectiveness of his appellate counsel. We affirm as to all Whitmore's claims regarding ineffective assistance of trial counsel, but find merit in his claim that appellate counsel was ineffective in failing to challenge on appeal the trial court's consideration of Whitmore's lack of remorse and failure to accept responsibility at his sentencing. We agree that the trial court's reliance on these factors violated his due process rights and constituted fundamental error. Because this issue should have been raised on direct appeal, we grant the petition. On September 21, 2003, Whitmore's small dog was attacked by the much larger dog of the victim, Gary Estes. Whitmore had to take his dog to the veterinarian for treatment. Whitmore, who had been drinking, was very upset and angry. After he returned from the veterinarian's office, he called Estes at Josie's Bar. Estes testified that Whitmore called him several times at the bar, each time sounding louder and angrier. Around midnight, Estes got a ride home from the bar. According to Estes, almost immediately, Whitmore confronted him. Whitmore had a pipe or a similar weapon, which he used to strike two hard blows on Estes's left leg. At that point, Estes was standing on one leg. As he reached down for his leg, Whitmore swung the pipe upwards, hitting Estes in the jaw and knocking him unconscious. Estes's jaw was broken, and he lost five of his front teeth. He remained in the hospital for three weeks.

Whitmore's former fianc

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