MARVIN A. SHAW AND LEONARD B. WILLIAMS, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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Shaw and Williams appealed the denial of their Rule 3.850 post-conviction motion for ineffective assistance of counsel. The court affirmed the denial as to claims in the original motion but remanded for consideration of additional claims raised in an amended motion and supplement filed before the trial court's ruling.
The court affirmed the denial of the motion insofar as it addressed the original motion's claims, but remanded for consideration of the additional issues timely raised in the amended motion and supplement because they were filed within the two-year limitation and before the trial court ruled on the initial motion, making successive motion rules inapplicable.
[1] A trial court must consider claims raised in an amended motion for postconviction relief if the amendment is timely filed before the court rules on the initial motion.
[2] A trial court must consider claims raised in a supplement to an initial motion for postconviction relief if the supplement is timely filed before the court rules on the i…
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Join FLexlaw to unlock all legal intelligence“The amendment and supplement were filed within the 2 year limitation and before the trial court ruled on the initial motion. Under these circumstances there is no reason why the trial court should not consider the merits of them.”
Establishes the court's rationale for remanding despite successive motion rules, based on the timing of the filings.
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Join FLexlaw to unlock all legal intelligenceShaw and Williams were convicted of aggravated battery and armed robbery, and their convictions were affirmed. They filed a Rule 3.850 motion for post…
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PER CURIAM.
Marvin Shaw and Leonard Williams have appealed an order denying their rule 3.850 motion without an evidentiary hearing. We affirm the denial of the motion insofar as it addresses the arguments raised in the initial motion, but remand to the trial court for consideration of additional issues timely raised in an amended motion and a supplement to the original motion.
Shaw and Williams were convicted of aggravated battery and armed robbery, and their convictions were affirmed. Thereafter they filed a rule 3.850 motion for post conviction relief based upon ineffective assistance of counsel. After them motion was filed, and prior to the time that the trial court ruled on the motion, Shaw and Williams filed an amended motion and a supplement to the original motion with the affidavits of three experts to support their allegations. The amendment and supplement address whether the motion to suppress should have been renewed at trial; whether the defense counsel should have objected to the in-court identification of the defendants as being unduly suggestive; whether the trial counsel should have brought up evidence of lack of motive; and whether the discrepancy between the eyewitness’ version of the description she gave to the police and the detective’s version should have been brought up at trial.
The trial court’s order denying the 3.850 motion did address all of the claims which were raised in the original motion but not those in the amended motion or in the supplement to the motion.
Rule 3.850(b) provides a two year time limitation for filing motions to vacate a sentence, and rule 3.850(f) prohibits multiple or successive motions. The eases discussing successive motions, however, generally involve situations in which the second motion is filed after the first motion has been denied. See e.g., Jones v. State, 450 So. 2d 325 (Fla. 4th DCA 1984).
In this case the amendment and supplement were filed within the 2 year limitation and before the trial court ruled on the initial motion. Under these circumstances there is no reason why the trial court should not consider the merits of them. We therefore remand for consideration of those issues raised by the defendants in their amended motion and supplement.
AFFIRMED.
DELL, C.J., and KLEIN and PARIENTE, JJ., concur.
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McCONN v. State, 708 So. 2d 308 (Fla. 2d DCA 1998)…n so ruling we acknowledged our earlier holding in Ferro, which discouraged piecemeal litigation on the postconvietion level. Other district courts of appeal have also wrestled with this issue and have come to varying conclusions. In Shaw v. State, 654 So. 2d 608 (Fla. 4th DCA 1995), the court remanded for consideration of the additional issues raised in an amended motion and supplement to the original 3.850 motion. The Fourth District held the amended motion and supplement should be considered on the merits…1 / 2
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Bradford v. State, 701 So. 2d 899 (Fla. 4th DCA 1997)…ry hearing. Nevertheless, in this circumstance, the trial court erred in failing to continue the evidentiary hearing on the original 3.850 motion until such time as the claims raised in the amended motion could also be considered. See Shaw v. State, 654 So. 2d 608 (Fla. 4th DCA 1995); State v. Gunsby, 670 So. 2d 920, 924 (Fla.1996)(holding that a claim of ineffective assistance of counsel is properly considered with reference to the cumulative effect of counsel’s deficiencies). Accordingly, we find that a p…
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Grissom v. State, 679 So. 2d 849 (Fla. 2d DCA 1996)…in the original August 11, 1994, motion. The addendum filed by Grissom, less than two years after his conviction had become final, was not untimely. Thus, the issue raised in the addendum should have been considered on its merits. See Shaw v. State, 654 So. 2d 608 (Fla. 4th DCA 1995). The record does not disclose whether a final order has yet been rendered on the original motion. If it has not, the issue raised in the addendum can be dealt with in that order when it is issued. If that order has in fact been…
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- Jones v. State, 450 So. 2d 325 (Fla. 4th DCA 1984)