Robert F. Galante v. State of Florida

OCR transcription; preserved printed pages are authoritative

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

ROBERT F. GALANTE,
Petitioner,

Vv.

STATE OF FLORIDA,
Respondent.

No. 4D2025-2639
[February 11, 2026]

Petition alleging ineffective assistance of appellate counsel to the
Circuit Court for the Nineteenth Judicial Circuit, Martin County;
Sherwood Bauer, Jr., Judge; L.T. Case No. 432021CFO00249A.

Robert F. Galante, Wewahitchka, pro se.

James Uthmeier, Attorney General, Tallahassee, and Joseph Mollica,
Assistant Attorney General, West Palm Beach, for respondent.

PER CURIAM.

Robert F. Galante filed a petition alleging several claims of ineffective
assistance of appellate counsel. Fla. R. App. P. 9.141(d). We grant the
petition as to one claim and deny the other claims without comment.

Galante alleges his appellate attorney provided ineffective assistance by
failing to argue that a prison releasee reoffender (PRR) sentence for false
imprisonment is illegal. In its response, the State does not address the
merits of the claim and instead argues that Galante cannot claim
ineffective assistance of appellate counsel because he freely represented
himself on direct appeal and counsel is not ineffective for failing to raise
an unpreserved error. Neither argument supports denial of this petition.

First, Galante did not freely represent himself on direct appeal. He had
appointed counsel. His appellate counsel filed an Anders! brief, and
Galante filed a pro se brief as permitted as part of this Court’s Anders
review. He did not choose to represent himself and “|t]he fact a petitioner

1 Anders v. California, 386 U.S. 738 (1967).

could have, but did not present an issue in his pro se brief on direct appeal
does not preclude a subsequent claim of ineffective assistance of appellate
counsel, nor does the fact that the court could have identified the error in
the course of its independent Anders review.” Towbridge v. State, 45 So.
3d 484, 486 (Fla. lst DCA 2010); see also Jackson v. State, 946 So. 2d 83
(Fla. 4th DCA 2006); Barber v. State, 918 So. 2d 1013, 1015-1016 (Fla. 2d
DCA 2006).

Second, it is well settled that “[a]ppellate counsel may be ineffective for
failing to raise claims of fundamental error.” Sheppard v. State, 338 So.
3d 803, 830 (Fla. 2022); Valle v. Moore, 837 So. 2d 905, 907-08 (Fla. 2002)
(explaining that appellate counsel cannot be considered ineffective for
failing to raise an unpreserved error, unless the error is fundamental); Lai
v. State, 405 So. 3d 372 (Fla. Sth DCA 2022) (“Appellate counsel’s failure
to identify fundamental error by the trial court, and the failure to raise it
in the direct appeal, generally falls outside of the range of professionally
acceptable performance and may constitute the basis for relief.”).
Appellate counsel may also be found ineffective for failing to file a rule
3.800(b)(2) motion to correct a sentencing error. Walding v. State, 328 So.
3d 9, 10 (Fla. 4th DCA 2021) (“We have held that appellate counsel can be
ineffective for failing to file a rule 3.800(b)(2) motion..”).

As Galante argues, the PRR sentence for false imprisonment is illegal.
See Washington v. State, 199 So. 3d 1110, 1111-12 (Fla. lst DCA 2016);
Lamb v. State, 32 So. 3d 117, 119 (Fla. 2d DCA 2009); Mosquera v. State,
16 So. 3d 255, 255 (Fla. 4th DCA 2009). Counsel’s failure to preserve the
error in a rule 3.800(b)(2) motion and, if necessary, raise it on direct appeal
constitutes ineffective assistance. Accordingly, we grant the petition in
part and remand for the trial court to strike the PRR sentence for false
imprisonment.?

Petition granted in part and denied in part.
KUNTZ, C.J., MAY and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely-filed motion for rehearing.

2 For this offense, Galante also received a habitual felony offender sentence,
which is not affected by this opinion.