
    Anthony DAVIS, Petitioner, v. William F. ROUSE, Superintendent, Martin Correctional Institution, Respondent.
    No. 89-1790.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 1989.
    Anthony Davis, in pro. per.
    Robert A. Butterworth, Atty. Gen., for respondent.
    Before NESBITT, BASKIN and COPE, JJ.
   PER CURIAM.

The petition for writ of habeas corpus filed by Anthony Davis makes two claims. First, as to the claim of ineffective assistance of trial counsel, the petition for writ of habeas corpus is denied without prejudice to file a motion with the trial court under Rule 3.850, Florida Rules of Criminal Procedure. Second, we treat the claim of improper denial of jury instruction as a claim of inadequate appellate counsel in the earlier appeal, which was disposed of pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The petition in this case does not warrant relief. The record of the prior appeal reveals that the jury instruction was not refused through a misapprehension of law as petitioner contends, but rather because there was no evidence to support an instruction on “attempt.” See Fla.R.Crim.P. 3.510. The petition is therefore denied with respect to the jury instruction.

Petition denied without prejudice as to the claim of ineffective assistance of trial counsel; petition denied on the merits with respect to ineffective assistance of appellate counsel.  