HAROLD JOSEPH SWIFT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court affirmed the trial court's denial of habeas corpus relief because the appellant's motion for post-conviction relief challenging ineffective assistance of counsel was filed more than three years after the statutory deadline under Florida Rule of Criminal Procedure 3.850.
A motion for post-conviction relief based on ineffective assistance of counsel filed more than three years after the statutory deadline is untimely and must be denied absent a fundamental constitutional violation.
[1] A motion for post-conviction relief based on ineffective assistance of counsel must be filed within the Rule 3.850 deadline, and untimely filings are barred absent a fund…
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Join FLexlaw to unlock all legal intelligenceThe appellant's sentence became final in 1972, and he was required to file any post-conviction relief motion by January 1, 1987 under Rule 3.850. He f…
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PER CURIAM.
The appellant herein seeks review of the Trial Court’s denial of his Petition for Writ of Habeas Corpus, which said petition, based upon the allegations contained therein, must be treated as a Motion for Post-Conviction Relief filed pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure.
Review of the record in this case demonstrates that the position taken by the State of Florida, as contained within their “Response to Petition for Writ of Habeas Corpus”, correctly reflects the posture of this case. Appellant’s sentence became final in 1972 and, pursuant to Fla.R.Crim.P. 3.850, appellant had until January 1,1987 to file a motion for any post-conviction relief that he thought that he was entitled to. The issue raised by the appellant herein, to-wit: the alleged ineffective assistance of trial counsel, is one that is properly raised through the filing of a Motion for Post-Conviction Relief as provided for in Rule 3.850, as referred to above. Accordingly, the motion (petition) filed by the appellant on May 15, 1990, was more than three years too late. In addition, appellant does not claim the violation of any fundamental constitutional right which would be deemed to be an exception to the foregoing rule. See Johnson v. State, 536 So. 2d 1009 (Fla.1988).
Accordingly, the trial judge was eminently correct in denying the appellant’s motion (petition).
Affirmed.
FERGUSON and LEVY, JJ., concur.
BASKIN, Judge
(concurring).
I concur in the result reached by the majority because the record refutes defendant’s assertion that he entered into the plea agreement without benefit of counsel.
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Parrado v. State, 599 So. 2d 111 (Fla. 1992)…PER CURIAM. We have for review Parrado v. State, 582 So. 2d 146 (Fla. 3d DCA 1991), which certified the same question of great public importance presented in Smith v. State, 598 So. 2d 1063 (Fla.1992). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. In light of Smith, the opinion under review is approved.…
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- Johnson v. State, 536 So. 2d 1009 (Fla. 1988)