ROBERT DAVID FERRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ferris appeals the denial of his second post-conviction motion alleging ineffective assistance of trial counsel. The court reversed, finding the motion timely filed and containing adequate grounds that warrant consideration on the merits.
The court reversed, holding that the motion was timely filed within the two-year period from the mandate date and raised adequate grounds warranting consideration. Although the motion was lengthy and the ineffectiveness claim could have been presented in the first motion, Ferris's justification for delayed presentation warranted the trial court's consideration.
[1] A motion for post-conviction relief is timely if filed within two years of the date the mandate in the direct appeal was issued.
[2] Pro se motions for post-conviction relief should be accorded a liberal interpretation.
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Join FLexlaw to unlock all legal intelligence“Since the mandate in the direct appeal was issued on August 8, 1988, the judgment and sentence were not final for purposes of Florida Rule of Criminal Procedure 3.850 until that date. Therefore, the motion was timely filed within the two year period provided by the rule.”
Establishes the timeliness of the second motion, determining when finality occurs for Rule 3.850 purposes.
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Join FLexlaw to unlock all legal intelligenceFerris filed a second 3.850 post-conviction motion on July 13, 1990, more than two years after his direct appeal mandate issued on August 8, 1988. In …
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PER CURIAM.
Ferris appeals from a denial of a second 3.850 motion for post-conviction relief. He alleges ineffective assistance of trial counsel. Appellant claims that in his previous 3.850 motion the ineffective counsel issue was not resolved because he requested delayed consideration of that issue until he was appointed counsel or was able to more fully develop the facts.
The trial court denied appellant’s second post-conviction motion as being untimely and verbose. We reverse the trial court’s denial of that motion. Appellant filed his motion on July 13, 1990. Since the mandate in the direct appeal was issued on August 8, 1988, the judgment and sentence were not final for purposes of Florida Rule of Criminal Procedure 3.850 until that date. Therefore, the motion was timely filed within the two year period provided by the rule. Ward v. Dugger, 508 So. 2d 778 (Fla. 1st DCA 1987). Furthermore, although the motion is lengthy because it incorporates a repetitious memorandum of law, it is a pro se motion and should be accorded a liberal interpretation. Thomas v. State, 164 So. 2d 857 (Fla. 2d DCA 1964); Andrews v. State, 160 So. 2d 726 (Fla. 3d DCA 1964). Appellant’s motion raises adequate grounds.
The appellee contends that the denial should nevertheless be affirmed upon other grounds. It maintains that this second motion for post-conviction relief was properly denied in any event since the only ground asserted, ineffectiveness of trial counsel, could have been presented in appellant’s first post-conviction motion.
Appellant presented the trial court with a showing, pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), that his trial counsel’s performance may have been deficient and that the deficiency prejudiced him. Although appellant failed to resolve the ineffectiveness claim in his initial motion, the justification he has offered warrants the trial court’s consideration of it at this time. Cf. Witt v. State, 465 So. 2d 510 (Fla.1985); Ames v. State, 518 So. 2d 465 (Fla. 1st DCA 1988).
Accordingly, we reverse and remand for the trial court to conduct an evidentiary hearing or to attach records that will show that appellant is entitled to no relief on his claim of ineffective assistance of counsel. Kruger v. State, 566 So. 2d 373 (Fla. 4th DCA 1990).
ANSTEAD, STONE and WARNER, JJ., concur.
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Solomon Willis v. State, 840 So. 2d 1135 (Fla. 4th DCA 2003)…e asserts that counsel was ineffective because he did not object when the trial court failed to give this instruction. Pro se motions should be given liberal construction. See Martinez v. Fraxedas, 678 So. 2d 489 (Fla. 3d DCA 1996); Ferris v. State, 575 So. 2d 303, 304 (Fla. 4th DCA 1991). As a result, we construe Willis’ claim as alleging that counsel was ineffective for failing to preserve this issue, whether by failing to object or by failing to request the instruction. Although the state suggests this is…
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Miller v. State, 601 So. 2d 604 (Fla. 4th DCA 1992)…d the motion as untimely. Appellant’s judgment and sentence were not final for purposes of rule 3.850 until this court issued its mandate in the direct appeal on October 12, 1990. See Huff v. State, 569 So. 2d 1247, 1250 (Fla.1990); Ferris v. State, 575 So. 2d 303 (Fla. 4th DCA 1991). Therefore, we find that appellant’s November 19, 1991, motion was timely filed within the two year period provided by rule 3.850. Accordingly, this cause is reversed and remanded for further proceedings. REVERSED and REMANDED.…
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Perley v. State, 968 So. 2d 679 (Fla. 4th DCA 2007)…emed final “when any such direct review proceedings have concluded and jurisdiction to entertain a motion for post-conviction relief returns to the sentencing court.” Ward v. Dugger, 508 So. 2d 778, 779 (Fla. 1st DCA 1987). See also Ferris v. State, 575 So. 2d 303 (Fla. 4th DCA 1991). For the purposes of appellant’s conviction for resisting arrest, all review was concluded when the conviction was affirmed, and jurisdiction was returned to the trial court. No further action could be taken as a result of the a…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Ward v. Dugger, 508 So. 2d 778 (Fla. 1st DCA 1987)
- Witt v. State, 465 So. 2d 510 (Fla. 1985)
- Andrews v. State, 160 So. 2d 726 (Fla. 3d DCA 1964)
- Levine Thomas v. State, 164 So. 2d 857 (Fla. 2d DCA 1964)
- Ames v. State, 518 So. 2d 465 (Fla. 1st DCA 1988)
- Kruger v. State, 566 So. 2d 373 (Fla. 4th DCA 1990)
- Jackson v. State, 566 So. 2d 373 (Fla. 4th DCA 1990)