DAVID ROSS DELAP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida Supreme Court affirmed the denial of a second motion for postconviction relief as procedurally barred under Rule 3.850 time limitations and successive motion doctrine.
A second motion for postconviction relief is procedurally barred when filed after the Rule 3.850 deadline and when it raises claims previously rejected or that should have been raised earlier.
[1] A successive motion for postconviction relief raising claims previously rejected or that should have been raised in an earlier motion constitutes an abuse of procedure.
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Join FLexlaw to unlock all legal intelligenceDelap appealed the denial of his second motion for postconviction relief and sought a stay of execution. His motion challenged trial testimony regardi…
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PER CURIAM.
Delap appeals the denial of his second motion for postconviction relief * and seeks a stay of execution pending disposition of his appeal. The motion is procedurally barred for each of the reasons stated below:
(1) The motion was not filed by January 1, 1987, in accordance with the time limitations of Florida Rule of Criminal Procedure 3.850, and none of Delap’s claims qualifies as exceptions set forth in that rule.
(2) The motion is a successive motion which constitutes an abuse of procedure. Delap’s first two claims which challenge the validity of trial testimony concerning the cause of death of the victim were raised and rejected in Delap’s previous motion for postconviction relief. De- lap’s third claim, predicated upon Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), should have been raised, if at all, in Delap’s first motion for postconviction relief which was filed more than six months after the United States Supreme Court’s opinion in Caldwell.
We, therefore, affirm the order denying postconviction relief and deny Delap’s application for a stay of execution. No petition for rehearing will be entertained.
It is so ordered.
McDonald, C.J., and OVERTON, EHRLICH, SHAW and GRIMES, JJ., concur. BARKETT, J., concurs specially with an opinion, with which KOGAN, J., concurs.
*
The Court affirmed the denial of a previous motion under Florida Rule of Criminal Procedure 3.850 in Delap v. State, 505 So. 2d 1321 (Fla.1987).
BARKETT, Judge,
specially concurring.
I concur because the merits of this appeal from the Court’s denial of defendant’s 3.850 motion have already been considered and denied by this Court.
KOGAN, J., concurs.
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Johnson v. State, 536 So. 2d 1009 (Fla. 1988)…shall have until January 1, 1987, to file a motion in accordance with this rule. This Court has previously applied the two-year limit in rejecting postconviction petitions in several cases. Demps v. State, 515 So. 2d 196 (Fla.1987); Delap v. State, 513 So. 2d 1050 (Fla.1987); White v. State, 511 So. 2d 984 (Fla.1987). Johnson’s suggestion that the rule is somehow ambiguous is utterly without merit. We also reject his contention that his claims fall within one of the two exceptions to the application of the t…
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Clark v. State, 533 So. 2d 1144 (Fla. 1988)…could have been, should have been, or were raised previously. They are, therefore, procedurally barred from consideration in this, Clark’s third, motion for postconviction relief.4 [*1146] Tafero v. State, 524 So. 2d 987 (Fla.1987); Delap v. State, 513 So. 2d 1050 (Fla.1987). The only issue now raised which is cognizable in these proceedings is the Hitchcock claim. Thompson v. Dugger, 515 So. 2d 173 (Fla.1987), cert, denied, — U.S.-, 108 S.Ct. 1224, 99 L.Ed.2d 424 (1988). The eleventh circuit, however, fully…
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Wooden v. State, 601 So. 2d 283 (Fla. 1st DCA 1992)…PER CURIAM. AFFIRMED. See Bertolotti v. State, 565 So. 2d 1343, 1345 (Fla.1990); Delap v. State, 513 So. 2d 1050 (Fla.1987). JOANOS, C.J., and SHIVERS and WIGGINTON, JJ., concur.…
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- Delap v. State, 505 So. 2d 1321 (Fla. 1987)