CHARLES EDWARD BASS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that issues which could have been raised on direct appeal may not be considered in a motion for post-conviction relief under Rule 3.850.
Appellant filed a second motion for post-conviction relief alleging erroneous sentencing for offenses committed during a single criminal episode. The …
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SHIVERS, Judge.
We grant the motion for rehearing, vacate the prior opinion in this cause, and substitute the following:
Appellant, defendant below, timely appeals the trial court’s denial without hearing of his motion for post-conviction relief. We affirm.
Appellant filed his first motion for post-conviction relief in this case in 1982 raising as grounds ineffective assistance of counsel, denial of a sanity hearing, double jeopardy, unfair trial and lack of jurisdiction. The trial court denied the motion without evidentiary hearing and the decision was per curiam affirmed by this court. Bass v. State, 421 So. 2d 69 (Fla. 1st DCA 1982). Appellant then filed a second motion for post-conviction relief, which is the subject of this appeal, alleging that he was erroneously sentenced to three consecutive mandatory minimum terms where the three offenses were committed during a single criminal episode. Palmer v. State, 438 So. 2d 1 (Fla.1983). The trial court dismissed the second motion without hearing on the basis that it was a successive motion for the same or similar relief.
Although we disagree with the trial court’s reasoning, we affirm its denial of the second motion. Matters which could have been raised on direct appeal may not be considered by motion under Rule 3.850. E.g., Smith v. State, 453 So. 2d 388 (Fla.1984); McRae v. State, 437 So. 2d 1388 (Fla.1983). Furthermore, Rule 3.850 has recently been amended, effective January 1,1985, to state:
This rule does not authorize relief based upon grounds which could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.
The Florida Bar; Re Amendment to Rules of Criminal Procedure (Rule 3.850), 460 So. 2d 907 (Fla.1984).
Since appellant’s second motion raises an issue which could have been addressed on direct appeal,1 the order of the trial court denying the motion is affirmed.
WENTWORTH and WIGGINTON, JJ., concur. . The argument raised by appellant in his second motion for post-conviction relief is based on Palmer v. State, 438 So. 2d 1 (Fla. 1983). The defendant/Palmer originally raised the issue by way of direct appeal in Palmer v. State, 416 So. 2d 878 (Fla. 4th DCA 1982).
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Bass v. State, 530 So. 2d 282 (Fla. 1988)…PER CURIAM. We have for review Bass v. State, 478 So. 2d 461 (Fla. 1st DCA 1985). This Court [*283] has jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution, based on direct conflict of decisions, and we quash the decision of the district court below. The petitioner, Bass, was convicted…
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Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987)…ntitled the party who had been affected by such change to reopen the controversy, lawsuits would not be settled with finality- . Although' not noted by the supreme court, several months before release of it’s opinion reversing our decision in Bass, 478 So. 2d 461, this court, sitting en banc, receded from that decision for the reasons stated in Dowdell v. State, 500 So. 2d 594 (Fla. 1st DCA 1986). . §§ 921.001 and 775.084, Fla.Stat.; rules 3.701 and 3.988, FIa.R.Crim.P. Rules 3.701 and 3.988 were promulgat…
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Napoleon Dowdell v. State, 500 So. 2d 594 (Fla. 1st DCA 1986)…nd this fundamental error is subject to collateral attack by a Rule 3.850 motion. Suffield v. State, 456 So. 2d 1196 (Fla. 4th DCA 1984) and Pettis v. State, 448 So. 2d 565 (Fla. 4th DCA 1984). We recognize that Aikens conflicts with Bass v. State, 478 So. 2d 461 (Fla. 1st DCA 1986), review granted, Case No. 68,230 (Fla.). We recede from Bass and in accordance with Aikens hold that under the facts of this case Dowdell properly filed this second Rule 3.850 motion to assert his Palmer claim. The state next co…1 / 2
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- McCRAE v. State, 437 So. 2d 1388 (Fla. 1983)
- THE FLA. BAR RE AMENDMENT TO RULES OF CRIM. PROCEDURE (RULE 3.850), 460 So. 2d 907 (Fla. 1984)
- Smith v. State, 453 So. 2d 388 (Fla. 1984)
- Palmer v. State, 416 So. 2d 878 (Fla. 4th DCA 1982)