MICHAEL LANIS TANNER, A/K/A MICKEY TANNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Tanner appealed the summary denial of his second postconviction motion claiming ineffective assistance of counsel. The court affirmed the denial, holding that under amended Florida Rule of Criminal Procedure 3.850, successive motions raising new grounds must include an explanation for why those grounds were not raised in the first motion.
The court held that under the 1985 amendment to Rule 3.850, when a prisoner files a successive motion raising new and different grounds for relief, the prisoner must affirmatively demonstrate why those grounds were not contained in the first motion, or the motion may be dismissed as an abuse of procedure.
[1] A second or successive motion for postconviction relief may be dismissed if the movant fails to allege new or different grounds for relief and the prior determination was…
[2] A movant filing a successive motion for postconviction relief has an affirmative duty to demonstrate why the grounds therein were not contained in the first motion.
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Join FLexlaw to unlock all legal intelligence“the judge finds that [the second motion] fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds were 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”
The amended Rule 3.850 language allowing dismissal of successive motions based on abuse of procedure if new grounds are not explained
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Join FLexlaw to unlock all legal intelligenceTanner was convicted in 1983 and filed an appeal. In 1986, he filed a second postconviction motion for the first time raising a claim of ineffective a…
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PER CURIAM.
Michael Tanner appeals from the summary denial of his motion for postconviction relief. We affirm.
The present motion is the second filed by Tanner since his 1983 conviction and subsequent appeal, but the first motion to raise a claim of ineffective assistance of counsel. Rather than address the merits of the motion, the court found that it constituted an abuse of the procedures set forth in Florida Rule of Criminal Procedure 3.850 because Tanner failed to state any basis for failing to raise the claim of ineffective counsel in his first motion.
Prior to a 1984 amendment, rule 3.850 provided that “[t]he sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” In McCrae v. State, 437 So. 2d 1388 (Fla.1983), the supreme court interpreted this provision as barring only motions based on the same or similar grounds presented in a previous motion, and only then where the first motion was adjudicated on its merits. The court found no procedural impediment to successive motions stating substantially different legal grounds.
However, effective January 1, 1985, rule 3.850 was amended to allow dismissal of successive motions “if the judge finds that [the second motion] fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds were 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.” The supreme court has held that this rule change now imposes upon prisoners filing successive motions the affirmative duty of demonstrating 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). 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 file an amended motion setting forth any reasons he may have for his failure to include all his arguments in a single motion.
CAMPBELL, A.C.J., and SCHOONOVER and HALL, JJ., concur.
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Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988)…the same grounds applies only when the grounds raised were previously adjudicated on their merits, not when the previous motion was summarily denied or dismissed as facially insufficient. McCrae v. State, 437 So. 2d 1388 (Fla.1983); Tanner v. State, 502 So. 2d 1008 (Fla. 2d DCA 1987). Here, the state contends that Gust’s previous motion, which alleged two substantially identical grounds as the one herein, was ruled on its merits after remand by this court in Gust v. State, supra. However, the trial court faile…
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Cintron v. State, 508 So. 2d 1315 (Fla. 2d DCA 1987)…S.Ct. 1602, 16 L.Ed.2d 694 (1966). . We note that Cintron’s conviction took place in 1978. If he has filed previous motions under rule 3.850 the present motion can be denied as repetitive. Witt v. State, 465 So. 2d 510 (Fla.1985); Tanner v. State, 502 So. 2d 1008 (Fla. 2d DCA 1987). The trial court could also find that the motion should be barred by laches, although we caution that the passage of time alone is not sufficient evidence of prejudice to the state to support denial on this ground. Simmons v. Stat…
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Bridges v. Dugger, 518 So. 2d 298 (Fla. 2d DCA 1987)…is was Bridges’ second motion and therefore constituted an abuse of procedure, and we affirmed. Bridges v. State, 502 So. 2d 428 (Fla. 2d DCA 1987). We see no reason to disavow that finding. Witt v. State, 465 So. 2d 510 (Fla.1985); Tanner v. State, 502 So. 2d 1008 (Fla. 2d DCA 1987). It is clear, therefore, that even if we now permitted Bridges a direct appeal from the judgment and sentence the precise remedy he seeks could not be provided in that manner. In order to vacate a sentence which he feels violates…
Previewing 3 of 7 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)
- McCRAE v. State, 437 So. 2d 1388 (Fla. 1983)
- Witt v. State, 465 So. 2d 510 (Fla. 1985)
- Stewart v. State, 495 So. 2d 164 (Fla. 1986)