Pinto v. State (737 So. 2d 1239, 1999)

THOMPSON, J.,

Pedro Rafael Pinto petitions this court for a writ of habeas corpus for a belated appeal. He argues that his appellate attorney was ineffective because he filed an Anders brief instead of arguing that his trial counsel was ineffective for failing to object to his departure sentence. Pinto contends he received a 30 year prison sentence instead of a guideline sentence within the recommended range of 47 to 59.2 months. We deny the petition because appellate counsel cannot be ineffective for failing to argue on direct appeal the sentencing error which was not preserved by trial counsel. The denial is without prejudice to allow Pinto to file a Rule 3.850 motion.

COBB and PETERSON, JJ., concur.

. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).