Opinion
Case No. 97-0118
Opinion filed June 4, 1997
Petition for writ of habeas corpus to the Circuit Court of the Seventeenth Judicial Circuit, Broward County; Stanton S. Kaplan, Judge; L.T. Case No. 89-22374 CF.
Wallace Smith, Clermont, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Patricia Ann Ash, Assistant Attorney General, West Palm Beach, for respondents.
Petitioner seeks relief alleging that his appellate counsel was ineffective for voluntarily dismissing the plenary appeal filed to challenge a conviction for delivery of cocaine within 1,000 feet of a school. We grant the petition for writ of habeas corpus and direct that the matter proceed as a belated appeal.
The question on appeal shall focus on whether fundamental error exists in connection with the state's failure to present evidence as to an essential element of the crime; namely, the distance between the school and the delivery of cocaine. See generally McKinney v. State, 640 So.2d 1183 (Fla. 2d DCA 1994); Lyon v. State, 591 So.2d 1107 (Fla. 4th DCA 1992); Everett v. State, 579 So.2d 394 (Fla. 3d DCA 1991); In Interest of T.M.M., 560 So.2d 805 (Fla. 4th DCA 1990).
Accordingly, as provided by Florida Rule of Appellate Procedure 9.140(j)(5)(D), this Court's opinion and mandate shall be filed with the lower tribunal and treated as the notice of appeal.
STONE, FARMER and STEVENSON, JJ., concur.