THEODORE ROBERT BUNDY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM
Finding that no motion for post-conviction relief under rule 3.850 has been filed, we affirm the circuit court’s order denying the application for stay of execution. Our order is without prejudice to the appellant’s right to file a motion for post-conviction relief in the trial court. See State ex rel. Russell v. Schaeffer, 467 So. 2d 698 (Fla. 1985).
It is so ordered.
BOYD, C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur. BARKETT, J., concurs specially with an opinion.
NO MOTION FOR REHEARING WILL BE ALLOWED.
BARKETT, Justice,
concurring specially.
I agree that this case is controlled by State ex rel. Russell v. Schaeffer, 467 So. 2d 698 (Fla.1985), and therefore, I concur in the decision of the court.
I am troubled, however, by the apparently unequal treatment afforded capital defendants under death warrant in the exercise of their rights under Florida Rule of Criminal Procedure 3.850. This rule establishes the right of a criminal defendant to collaterally attack his conviction.
The rule specifically provides:
Any person whose judgment and sentence became final prior to January 1, 1985, shall have until January 1, 1987, to file a motion in accordance with this rule.
The defendant’s case falls within these parameters. To permit the shortening of this time period by execution prior to a defendant’s opportunity to exercise the right afforded him by Rule 3.850 would seem to violate the equal protection and due process guarantees of our constitutions. “[T]he government violates the essence of due process when it creates a right to petition and then makes the exercise of that right utterly impossible.” Haitian Refugee Center v. Smith, 676 F. 2d 1023 (5th Cir.1982). Those criminal defendants whose convictions have become final prior to January 1, 1985, are given the opportunity to carefully and deliberately evaluate and present their claims until January 1, 1987. Should not capital defendants be afforded the same opportunity?
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Koon v. Dugger, 619 So. 2d 246 (Fla. 1993)…ns and petitions for postconviction relief be filed within thirty days of the date the warrant was signed). This is unfair and unequal treatment of capital defendants, as well as a denial of such defendants’ right to due process. See Bundy v. State, 490 So. 2d 1257, 1257-58 (Fla.1986) (Barkett, J., dissenting). It is an absurd anomaly that defendants convicted of comparatively minor crimes have the full period granted under the rule in which to file for relief, whereas capital defendants facing the ultimate pe…
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Bundy v. State, 490 So. 2d 1258 (Fla. 1986)…BARKETT, Justice, dissenting. For the reasons expressed in my concurring opinion in Bundy v. State, 490 So. 2d 1257 (Fla.1986), and because I do not feel the trial court’s order comports with the requirements of Florida Rule of Criminal Procedure 3.850,1 respectfully dissent.…
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In re Florida Rules OF Criminal Procedure, 503 So. 2d 320 (Fla. 1987)…ues raised by a rule which affords capital defendants under death warrants less time to pursue remedies provided under Rule 3.850 than that afforded other defendants, including capital defendants who are not under death warrants. See Bundy v. State, 490 So. 2d 1257 (Fla.1986) (Barkett, J., concurring specially).…
Authorities Cited
- Haitian Refugee Ctr. v. Smith, 676 F.2d 1023 (5th Cir. 1982)
- State of Fla. ex rel. James T. Russell v. Honorable Susan Schaeffer, 467 So. 2d 698 (Fla. 1985)