ALEX T. BELL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Alex T. Bell appealed the denial of his habeas corpus petition claiming ineffective assistance of counsel for waiving his right to dismiss a defective information. After the Third District Court of Appeal affirmed the trial court's denial in August 2008, Bell filed a second appeal of the same order, which was dismissed as duplicative.
The court dismissed Bell's second appeal of the same October 9, 2007 order denying his habeas corpus petition because he had already appealed that order once and received a decision on the merits.
[1] A petition for writ of habeas corpus cannot be used as a substitute for an appropriate postconviction motion.
[2] A notice of appeal must be filed within thirty days from the rendition of the order to confer jurisdiction on the appellate court.
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Join FLexlaw to unlock all legal intelligence“The defendant filed a petition for writ of habeas corpus, arguing that his trial counsel was ineffective for waiving his 'right to dismiss defective information.'”
Establishes the basis of Bell's ineffective assistance of counsel claim
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Join FLexlaw to unlock all legal intelligenceBell was charged with robbery using a deadly weapon or firearm in 2003. In August 2006, he entered a guilty plea and was sentenced to twenty-five year…
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ROTHENBERG, J.
In 2003, the defendant, Alex T. Bell, was charged with robbery using a deadly weapon or firearm. In August 2006, the defendant entered into a guilty plea, and he was sentenced to twenty-five years’ imprisonment with a fifteen-year minimum mandatory, followed by five years of probation.
In August 2007, the defendant filed a petition for writ of habeas corpus, arguing that his trial counsel was ineffective for waiving his “right to dismiss defective information.” On October 9, 2007, the trial court denied the defendant’s petition, finding that the plea colloquy conclusively refuted the defendant’s claim. The defendant appealed the denial of his petition to this Court in case number 3D07-2869. In response, the State argued that (1) this Court lacked jurisdiction because the defendant did not file his notice of appeal within thirty days from the rendition of the order, as required by Florida Rule of Appellate Procedure 9.140(b)(3); and (2) a petition for writ of habeas corpus cannot be used as a substitute for an appropriate postconviction motion. This Court issued a per curiam affirmance on August 13, 2008, see Bell v. State, 990 So. 2d 1070 (Fla. 3d DCA 2008), and mandate was issued on October 10, 2008.
In the instant case, the defendant filed a “Petition for Writ of Certiorari” in this Court, seeking to review the trial court’s October 9, 2007 order, arguing that the order is a “non-final” order and that the trial court “abused it’s [sic] discretion in failing to give the Petitioner a proper ruling on his Motion/Petition Rule 3.850(H) [sic].” We treat the defendant’s “Petition for Writ of Certiorari” as an appeal of the trial court’s order dated October 9, 2007. Therefore, as this is the defendant’s second appeal of the trial court’s October 9, 2007 order, we hereby dismiss the instant appeal.
Dismissed.