ROY ALLEN STEWART, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roy Allen Stewart, under a death warrant, appealed the denial of his post-conviction relief motion claiming the Florida death penalty is imposed in a racially discriminatory manner. The Florida Supreme Court affirmed the trial court's dismissal on procedural grounds, finding Stewart barred from raising the claim in his second Rule 3.850 motion because he failed to raise it in his first motion without justification.
Stewart is procedurally barred from raising the racial discrimination claim in his second 3.850 motion because he failed to raise it in his first motion without any justification. The trial court's order denying relief is affirmed and the stay of execution is denied.
[1] A second or successive motion for post-conviction relief may be dismissed if the judge finds that the movant's failure to assert new grounds in a prior motion constituted…
[2] The abuse of procedure amendment to Florida Rule of Criminal Procedure 3.850 may be applied retroactively.
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Join FLexlaw to unlock all legal intelligence“A second or successive motion may be dismissed if ..., if new and different grounds are alleged, the judge finds that the failure of the movant or his attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.”
Establishes the procedural rule under which Stewart's successive motion could be dismissed for abuse of procedure
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Join FLexlaw to unlock all legal intelligenceStewart was under a death warrant when he filed his second Rule 3.850 post-conviction motion. His first death warrant was signed in 1984, prompting hi…
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[*165] PER CURIAM.
Stewart, currently under a death warrant, appeals the trial court’s denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief and requests a stay of execution. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.; Fla. R.Crim.P. 3.850. We affirm the trial court’s order denying relief and deny the requested stay.
In his 3.850 motion Stewart claimed that the death penalty is improperly imposed in Florida in a racially discriminatory manner. The trial court found Stewart to be procedurally barred from raising that claim in this, his second, 3.850 motion. On appeal Stewart argues that this claim should not be summarily dismissed and that his failure to raise the issue previously does not constitute an abuse of procedure.
In The Florida Bar re Amendment to Rules of Criminal Procedure (3.850), 460 So. 2d 907, 908 (Fla.1984), this Court amended rule 3.850 to read, in part: “A second or successive motion may be dismissed if ..., if new and different grounds are alleged, the judge finds that the failure of the mov-ant or his attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.” Moreover, in Christopher v. State, 489 So. 2d 22 (Fla.1986), we held that, because we are dealing with a rule of procedure, the abuse of procedure amendment to rule 3.850 may be applied retroactively.
Since Henry v. State, 377 So. 2d 692 (Fla.1979), we have held that the instant claim is cognizable in a 3.850 proceeding. Stewart’s first death warrant, signed in 1984, prompted his first 3.850 motion, in which he raised a single claim alleging trial counsel’s ineffectiveness. Stewart v. State, 481 So. 2d 1210 (Fla.1985). At that time the instant claim had been found to be cognizable for at least six years.
Stewart’s current argument that he could not raise this issue in his first 3.850 motion because it could not be pleaded adequately at that time is without merit. In Christopher we stated that a successive motion could be denied “unless the movant alleges that the asserted grounds were not known and could not have been known to the movant at the time the initial motion was filed.” 489 So. 2d at 24. That Stewart has found yet another study which, he contends, now demonstrates the merit of his claim does not excuse his failure to raise the issue in a more timely manner, i.e., two years ago. Stewart has shown no justification for his failure to raise this issue in his first motion. Witt v. State, 465 So. 2d 510 (Fla.1985). We therefore agree that Stewart is procedurally barred from raising this issue now,* and we affirm the trial court’s order and deny the requested stay of execution. The application for stay pending petition for writ of certiorari is denied also.
It is so ordered.
MCDONALD, C.J., and ADKINS, BOYD and EHRLICH, JJ., concur. OVERTON, SHAW and BARKETT, JJ., concur in result only.
*
Were we to reach the merits of this claim, we would rule against Stewart as we have against others who have raised this issue. E.g., Smith v. State, 457 So. 2d 1380 (Fla.1984): State v. Henry, 456 So. 2d 466 (Fla.1984); Meeks v. State, 382 So. 2d 673 (Fla.1980).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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State v. Sireci, 502 So. 2d 1221 (Fla. 1987)…we have already rejected the identical claim raised by Sireci on his initial motion for post-conviction relief. 469 So. 2d at 120. Moreover, Sireci would be procedurally barred from raising this issue in a subsequent 3.850 motion. Stewart v. State, 495 So. 2d 164 (Fla.1986). Accordingly, we affirm the trial court’s order mandating a limited evidentiary hearing, deny the state’s request to vacate the stay of execution, and deny Sireci’s petition for writ of habeas corpus. It is so ordered. OVERTON and SHAW…
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Tanner v. State, 502 So. 2d 1008 (Fla. 2d DCA 1987)…ing why the grounds therein were not contained in the first motion. Christopher v. State, 489 So. 2d 22 (Fla.1986); Witt v. State, 465 So. 2d 510 (Fla.1985). This amendment, because it was procedural in nature only, is retroactive. Stewart v. State, 495 So. 2d 164 (Fla.1986). [*1009] Because Tanner made no effort to justify his filing of a second motion raising additional grounds for relief, the trial court properly denied the motion. The order of the trial court is affirmed without prejudice to Tanner to fil…
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Mabry Milton Murphy v. State, 519 So. 2d 1108 (Fla. 4th DCA 1988)…PER CURIAM. We affirm the trial court’s denial of appellant’s motion for post-conviction relief because the record reflects that a prior motion alleging the same grounds and prayer for relief had been filed and denied. See Stewart v. State, 495 So. 2d 164 (Fla.1986). DOWNEY, ANSTEAD and LETTS, JJ., concur.…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tortoise Island Cmtys., Inc. v. The Moorings Ass'n, Inc., 489 So. 2d 22 (Fla. 1986)
- Meeks v. State, 382 So. 2d 673 (Fla. 1980)
- Witt v. State, 465 So. 2d 510 (Fla. 1985)
- Smith v. State, 457 So. 2d 1380 (Fla. 1984)
- THE FLA. BAR RE AMENDMENT TO RULES OF CRIM. PROCEDURE (RULE 3.850), 460 So. 2d 907 (Fla. 1984)
- Henry v. State, 377 So. 2d 692 (Fla. 1979)
- State v. Henry, 456 So. 2d 466 (Fla. 1984)
- Stewart v. State, 481 So. 2d 1210 (Fla. 1985)