Basse v. State

¶1Luther Basse petitions1 this court for a new appeal alleging multiple claims of ineffective assistance of appellate counsel. We deny his petition but write to address one of his claims.

¶2Basse alleges that his appellate counsel was ineffective in failing to ensure that the appellate record was complete and accurate. Although we agree that under the circumstances of this case counsel erred in failing to ensure that the audio tape of Basse’s confession was included in the appellate record2 and in filing his initial brief without having reviewed that tape, we conclude after considering Basse’s transcript of the tape that he was not prejudiced by counsel’s error. See, e.g., Thompson v. State, 759 So.2d 650 (Fla.2000) (holding that in order to prevail on a claim of ineffective assistance of appellate counsel on the basis that counsel failed to ensure that the appellate record was complete, petitioner must show not only that counsel erred but also that the deficiency in performance compromised the appellate procedure to such a degree as to undermine confidence in the result). Specifically we find that even if the facts are as alleged by Basse, rather than as alleged by counsel in his brief to this court,3 the trial *13court did not err in its denial of Basse’s motion to suppress his confession.

¶3We do not, however, mean to suggest by the denial of this petition that we approve of counsel’s filing his initial brief based upon a record that was clearly incomplete in material regards. Under other circumstances, such error might well have required the granting of a new appeal.

¶4We deny Basse’s other claims without comment.

¶5Petition denied.