LEARTIS BARNES A/K/A PHILLIP SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Appellant Barnes sought to withdraw his 1986 guilty plea to armed robbery and other charges, claiming ineffective assistance of counsel and an involuntary plea. The Florida District Court of Appeal affirmed the trial court's summary denial of the motion, finding it procedurally barred by the two-year filing deadline and lacking merit on the substance.
The appeal was denied on both procedural and substantive grounds. Procedurally, the motion was barred because it was filed more than four years after the two-year deadline established by rule 3.850(b). Substantively, appellant failed to allege facts not rebutted by the sentencing record demonstrating that counsel's performance was deficient and that the outcome would have been different.
[1] A motion to withdraw a guilty plea based on ineffective assistance of counsel is procedurally barred if not filed within the applicable time limitations.
[2] A defendant seeking post-conviction relief based on ineffective assistance of counsel must allege facts that are not conclusively rebutted by the record.
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Join FLexlaw to unlock all legal intelligence“To obtain the relief sought defendant must allege facts which are not conclusively rebutted by the record and which demonstrate that counsel's performance was so deficient that but for the deficiency the outcome would have been different.”
Establishes the legal standard for ineffective assistance of counsel claims under Strickland v. Washington
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Join FLexlaw to unlock all legal intelligenceAppellant pleaded guilty to five counts of armed robbery in April 1984 and received five and one-half years in prison. In 1986, he was charged with es…
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BARKDULL, Judge.
Appellant seeks review of the trial court’s summary denial of a rule 3.850 motion to withdraw a plea.
In April of 1984 defendant plead guilty to five counts of armed robbery and was sentenced to five and one half years in prison. In August of 1986 defendant was charged with escape and in November of 1986 he was charged with robbery with a firearm and possession of a firearm during the commission of a felony. In December of 1986 defendant plead guilty to the escape charge and the other crimes charged and was sentenced accordingly. In July and again in August of 1990 defendant attacked the 1986 sentences by rule 3.800 motion. Those motions were denied by the trial court and this court affirmed those denials, without opinion, at 586 So. 2d 348 (Fla. 3d DCA 1991). In February of 1993 defendant filed a rule 3.850 motion challenging the 1986 sentences. The trial court summarily denied that motion and this court affirmed the trial court’s denial, without opinion, at 624 So. 2d 272 (Fla. 3d DCA 1993). Defendant now brings this rule 3.850 motion seeking to withdraw his guilty plea claiming that his plea was involuntary due to ineffective assistance of defense counsel.
Proeedurally defendant’s motion is barred.1 Defendant has missed the time limitation by at least four years2 thus, this motion must fail.
Furthermore, defendant is not entitled to relief on the merits. Defendant alleges that he was under the belief that his sentences in the 1986 cases were to run concurrent to the sentences in the 1984 cases. Defendant alleges that he should be allowed to withdraw his guilty plea in the 1986 cases because he did not understand the true nature of the sentences he was pleading to. Further, defendant alleges that his counsel was ineffective in that he did not explain the significance of the plea nor the nature of the crimes to which he was pleading guilty.
Defendant fails to allege a factual basis for post conviction relief. The sentencing transcript clearly demonstrates that defendant was made fully aware of the sentence he was to receive and that defendant had been fully advised by his counsel as to same. To obtain the relief sought defendant must allege facts which are not conclusively rebutted by the record and which demonstrate that counsel’s performance was so deficient that but for the deficiency the outcome would have been different. See and compare Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Kennedy v. State, 547 So. 2d 912 (Fla.1989); Agan v. State, 503 So. 2d 1254 (Fla.1987); O’Callaghan v. State, 461 So. 2d 1354 (Fla.1984). This defendant has failed to do.
Accordingly, the order under review is affirmed.
Affirmed.
. Under rule 3.850(b) a defendant must file his motion within two years of his conviction becoming final. Since defendant plead to the 1986 cases his sentences became final in January of 1987 and thus defendant had until January of 1989 to file his motion.
. Rule 3.850(b)(1) allows a defendant to bring a motion for post conviction relief more than two years after the conviction has become final where the facts upon which the claim is based were unknown and could not have been ascertained by the exercise of due diligence. Defendant may not avail himself of this "discovery" provision to excuse his tardiness in seeking relief in this case. Defendant was fully aware of the true nature of his sentence when his rule 3.800 motions to correct and or clarify sentence were denied. Thus, defendant was aware of the alleged deficiencies which rendered his plea involuntary from at least 1990.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Skidmore v. State, 688 So. 2d 1014 (Fla. 3d DCA 1997)…d intelligent character of'the plea which is a claim that must be brought by a timely 3.850 motion to withdraw the plea in the trial court. Brown v. State, 661 So. 2d 95 (Fla. 4th DCA 1995), review denied, 668 So. 2d 602 (Fla.1996); Barnes v. State, 643 So. 2d 83 (Fla. 3d DCA 1994); Gainer v. State, 590 So. 2d 1001 (Fla. 1st DCA 1991); Simmons v. State, 579 So. 2d 874 (Fla. 1st DCA 1991). As stated above, this 3.850 is untimely. But even if the defendant had brought a timely motion and was successful in with…
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McCRAY v. State, 701 So. 2d 1266 (Fla. 3d DCA 1997)…PER CURIAM. Defendant appeals from the denial of his motion for postconviction relief. We affirm. See Barnes v. State, 643 So. 2d 83 (Fla. 3d DCA 1994); Fla. R.Crim. P. 3.850 (“A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. [*1267] No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after t…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Kennedy v. State, 547 So. 2d 912 (Fla. 1989)
- O'Callaghan v. State, 461 So. 2d 1354 (Fla. 1984)
- Agan v. State, 503 So. 2d 1254 (Fla. 1987)