JOHN M. FERENC, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John M. Ferenc appealed the trial court's summary denial of his motion to withdraw a nolo contendere plea and seek postconviction relief for a 1977 burglary conviction. The court affirmed the denial, finding the motion was filed outside the two-year statutory period and did not qualify for any recognized exception.
The court affirmed the denial of the postconviction relief motion because it was filed outside the two-year statutory period and did not qualify for any of the three recognized exceptions. However, the court reversed the denial of the in forma pauperis motion, finding that section 57.085(8) does not apply to criminal or collateral criminal proceedings.
[1] A statute authorizing dismissal of frivolous proceedings by indigent prisoners does not apply to criminal proceedings or collateral criminal proceedings.
[2] An appellate court may presume an incarcerated defendant previously declared indigent remains indigent absent evidence to the contrary.
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Join FLexlaw to unlock all legal intelligence“Florida Rule of Criminal Procedure 3.850(b) requires that motions for postconviction relief be filed within two years after the judgment and sentence become final.”
Establishes the primary jurisdictional requirement for postconviction relief motions
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Join FLexlaw to unlock all legal intelligenceFerenc was convicted of burglary of a dwelling in 1977 and entered a nolo contendere plea. He filed a motion for postconviction relief styled as a mot…
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ANTOON, Judge.
Upon review of the trial court’s summary denial of John M. Ferenc’s (defendant) motion for postconviction relief, we affirm. The defendant filed a motion for postconviction relief styled “Motion to Withdraw Nolo Con-tendere Plea,” challenging his 1977 conviction for burglary of a dwelling. The trial court denied the motion, and the defendant appealed. The defendant also filed a motion to proceed on appeal in forma pawperis. The trial court denied the motion, finding that his appeal was frivolous. Specifically, the trial court stated:
The Court concludes the defendant may be indigent, but his appeal is frivolous, without foundation in law or fact, and the application to the County to fund his appeal is denied.
In denying the motion to proceed in forma pauperis, the trial court apparently relied on section 57.085(8), Florida Statutes (1995), which authorizes the trial court to dismiss a frivolous proceeding initiated by an indigent prisoner under certain circumstances at any time.
However, subsection (10) of the statute provides that section 57.085 “does not apply to a criminal proceeding or a collateral criminal proceeding.” Accordingly, the denial of the defendant’s motion was improper. Florida Rule of Appellate Procedure 9.430 provides that an appellate court may presume that an incarcerated defendant, who has been previously declared indigent in the proceedings before the trial court, remains indigent in the absence of evidence to the contrary. The defendant was declared indigent at trial and was appointed counsel. No evidence has since been presented indicating that the defendant is no longer indigent.
Accordingly, we grant the defendant’s request to proceed informa pauperis and consider the summary denial of his motion for postconviction relief.
The defendant claims that the trial court’s denial of his motion for postconvietion relief was in error.
We disagree. Florida Rule of Criminal Procedure 3.850(b) requires that motions for postconviction relief be filed within two years after the judgment and sentence become final. See Bannister v. State, 606 So. 2d 1247, 1248 (Fla. 5th DCA 1992). There are three exceptions to the two-year limitation: (1) a claim of illegal sentence; (2) a claim of newly discovered evidence; and (3) a claim based on a fundamental change in the law held to apply retroactively. Id. In the absence of an exception, a motion filed outside of the two-year period will not invoke the jurisdiction of the trial court. Rivet v. State, 618 So. 2d 377, 378 (Fla. 5th DCA 1993). Here, the two-year period has long since expired, and the defendant’s motion fails to set forth an exception.
Accordingly, we affirm the trial court’s denial of the defendant’s motion for postconviction relief.
In disposing of this appeal, we agree with the trial court that the appeal is frivolous and we note that the legislature shares the trial court’s view that frivolous appeals, even in collateral civil proceedings, should not be tolerated carte blanche. Appellant is herewith cautioned that frivolous appeals may subject a defendant to sanctions as provided in section 944.28(2)(a), Florida Statutes (Supp.1996), including a forfeiture of gain time.
AFFIRMED.
GRIFFIN, C.J., and THOMPSON, J., concur.
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Hall v. State of Fla. & Michael W. Moore, 752 So. 2d 575 (Fla. 2000)…ding” in the statute, nor have we found a definition of a “criminal collateral proceeding” or “collateral criminal proceeding” in Black’s Law Dictionary. However, we agree with that portion of the Fifth District’s recent decision in Ferenc v. State, 697 So. 2d 1262 (Fla. 5th DCA 1997), where it found that the new prisoner statute (which was part of the same act) does not apply to 3.850 motions because they are collateral criminal proceedings, and are specifically excluded from the "new prisoner indigency statu…
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Rafial A. Mercade v. State, 698 So. 2d 1313 (Fla. 2d DCA 1997)…0 So. 2d 754 (Fla. 5th DCA 1997) (Hall I), the Fifth District advised Mr. Hall “that any further pursuit of frivolous appeals will subject him to sanctions as provided in section 944.28(2)(a), Florida Statutes (Supp.1996).” See also Ferenc v. State, 697 So. 2d 1262 (Fla. 5th DCA 1997) (providing the same cautionary warning).3 Mr. Hall failed to heed this admonition and filed an appeal from the summary denial of two postconviction relief motions. After determining that the appeal was frivolous, the Fifth Distri…
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Geffken v. R.R. Strickler, 778 So. 2d 975 (Fla. 2001)…fferent statuto [*977] ry scheme, which provides for discipline when an inmate files a frivolous or other improper lawsuit. See §§ 944.279, 944.28(2)(a), Fla. Stat. (1999). Similarly, the Fifth District Court of Appeal concluded in Ferenc v. State, 697 So. 2d 1262 (Fla. 6th DCA 1997), that the Prisoner Indigency Statute does not apply to postconviction motions because they are collateral criminal proceedings. Like the sanction statutes, the Prisoner Indigency Statute provides that it does not apply to a “crim…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bannister v. State, 606 So. 2d 1247 (Fla. 5th DCA 1992)
- Rivet v. State, 618 So. 2d 377 (Fla. 5th DCA 1993)