TONY LAWRENCE JONES A/K/A ANTHONY LAWRENCE JONES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the defendant's motion for post-conviction relief was time-barred and that the issues raised had already been decided on direct appeal.
The defendant was convicted of sexual battery and appealed, with his conviction becoming final in 1991. In 1994, he filed a motion for post-conviction…
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BARKDULL, Judge.
Jones was convicted for committing six counts of sexual battery upon his seven year old daughter. On direct appeal Jones argued that he was denied his right to a fair trial due to misconduct by the trial judge, and that improper hearsay testimony was admitted. See Jones v. State, 582 So. 2d 110 (Fla. 3d DCA 1991) wherein this court held that although the misconduct issue was not preserved for appellate review the evidence against Jones was so conclusive that any error was harmless. On the hearsay issue this court held that the alleged hearsay testimony was properly admitted pursuant to § 90.803(23), Florida Statutes (1989) and thus no error occurred. Jones’ conviction became final in late August of 1991. In September of 1994, Jones filed, pursuant to rule 3.850, a motion for post conviction relief alleging that his counsel was ineffective in that counsel failed to file a motion to disqualify the trial judge for bias and prejudice; that counsel failed to object to the trial judge’s remarks during cross examination; that counsel failed to object to hearsay testimony; and that his right to a fair trial had been violated. The trial court denied Jones’ motion stating that it was time barred and Jones appealed.
A rule 3.850 motion must be brought within two years of the underlying conviction becoming final. The trial court correctly denied Jones’ motion as untimely. See Fla. R.Crim.Pro. 3.850.
Even were there no procedural bar, Jones’ motion would still fail. Jones’ motion is a classic example of abuse of process, the issues raised were previously decided on direct appeal “and are thus foreclosed from consideration under post conviction relief.” Smith v. State, 453 So. 2d 388, 389 (Fla.1984).
Affirmed.
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Rodriguez v. State, 768 So. 2d 1229 (Fla. 3d DCA 2000)…ores v. State, 745 So. 2d 977 (Fla. 3d DCA 1999) (holding that if issues raised in motion for postconviction relief pursuant to Fla. R.Crim. P. 3.800 require evidentiary hearing, challenge must be raised under Fla. R.Crim. P. 3.850); Jones v. State, 652 So. 2d 449 (Fla. 3d DCA 1995) (holding that rule 3.850 motion must be brought within two years of underlying conviction becoming final).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Smith v. State, 453 So. 2d 388 (Fla. 1984)
- Isom v. State, 582 So. 2d 110 (Fla. 3d DCA 1991)
- Jones v. State, 582 So. 2d 110 (Fla. 3d DCA 1991)