GREGORY CLEMENT BYRD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gregory Byrd appeals the denial of his postconviction relief motion challenging both his conviction for aggravated battery with a firearm and his guilty plea to firearm possession by a convicted felon. The court affirmed the denial regarding the firearm possession count but reversed and remanded regarding the aggravated battery count to allow a hearing on ineffective assistance of counsel.
The court affirmed the denial of postconviction relief on Count II because the motion was filed beyond the two-year statutory limit. For Count I, the court reversed and remanded for a hearing on the ineffective assistance of counsel claim regarding the statute of limitations defense, but rejected the unsigned information claim as procedurally barred and facially insufficient.
[1] A motion for postconviction relief filed beyond the two-year limit is properly denied.
[2] A claim of ineffective assistance of counsel based on the failure to raise the statute of limitations defense may entitle a defendant to a hearing if the record does not…
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Join FLexlaw to unlock all legal intelligence“No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.”
Establishes the procedural bar to raising unsigned information defects post-plea, which defeats Byrd's unsigned information claim.
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Join FLexlaw to unlock all legal intelligenceByrd was convicted after jury trial of aggravated battery with a firearm (Count I) and entered a guilty plea to the severed charge of possession of a …
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PER CURIAM.
Gregory Clement Byrd appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.
Defendant-appellant Byrd was convicted after jury trial of the charge of aggravated battery with a firearm (Count I), and entered a guilty plea to the severed charge of possession of a firearm by a convicted felon (Count II). He seeks postconviction relief with respect to both claims.
Because of the severance, the convictions on the two counts became final at different times. With respect to Count II, the Rule 3.850 motion was filed beyond the two-year limit, and therefore we affirm the denial of postconviction relief on that count. See Fla. R.Crim. P. 3.850(b).
With regard to Count I, defendant contends that his trial counsel was ineffective for failing to raise the defense of statute of limitations. The record now before us does not conclusively refute this claim, See Fla. R.App. P. 9.140(i), and the State concedes that the defendant is entitled to a hearing on it.
Defendant also contends that he went to trial on an unsigned information, and that this is a basis for postconviction relief. To begin with, the 3.850 motion is facially insufficient on this point, because it does not clearly allege that the defendant ever actually examined the original information in this cause.1 In any event, “No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.” Fla. R.Crim. P. 3.140(g); see Colson v. State, 717 So. 2d 554 (Fla. 4th DCA 1998); Montanez v. State, 630 So. 2d 1163 (Fla. 3d DCA 1993); Holt v. State, 516 So. 2d 25 (Fla. 3d DCA 1987). The rule exists because this is the type of defect which could readily be cured if timely raised in the trial court. Defendant relies on Turner v. State, 444 So. 2d 974 (Fla. 3d DCA 1984), but (a) it involved a signed information executed by an unauthorized person, not (as alleged here) an unsigned information, and (b) there is no indication that Rule 3.140 was raised or considered in connection with that case.
Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.
. The clerk of the circuit court, in preparing the record in defendant’s direct appeal to this court. filed a certificate stating that the original information could not be located in the court records.
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State v. Will Beacham Perkins, 977 So. 2d 643 (Fla. 5th DCA 2008)…on for this procedural rule precluding objections to an information on the ground that it was unsigned or unverified after the defendant pleads to the merits of the cause is because such a defect can readily be cured if timely raised. Byrd v. State, 730 So. 2d 382 (Fla. 3d DCA 1999). Under the defendant’s position, at what point would a purported reservation of the right to challenge these technical deficiencies expire? Rule 3.140(g) creates a clear line of demarcation, requiring technical challenges relating…
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Williams v. State, 742 So. 2d 496 (Fla. 1st DCA 1999)…that the “appearance of any person in a hearing before the court obviates the necessity of serving process on that person.” § 985.219(1), Fla. Stat. (1997). Not every irregularity renders judicial proceedings nugatory. See generally Byrd v. State, 730 So. 2d 382 (Fla. 3d DCA 1999)(noting clerk’s “certificate stating that the original information could not be located” in affirming denial of collateral attack on judgment on grounds information need not be signed). Florida Rule of Criminal Procedure 3.140(g) f…
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Ferguson v. State, 744 So. 2d 558 (Fla. 3d DCA 1999)…lorida Rule of Criminal Procedure 3.140(g), which provides: “No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.” See also Byrd v. State, 730 So. 2d 382, 383 (Fla. 3d DCA 1999); Colson v. State, 717 So. 2d 554, 555 (Fla. 4th DCA 1998); Montanez v. State, 630 So. 2d 1163 (Fla. 3d DCA 1993); Morffy v. State, 534 So. 2d 733, 734 (Fla. 3d DCA 1988); Holt v. State, 516 So. 2d 25 [*559] (Fla. 3d DCA 1987)…
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
- Colson v. State, 717 So. 2d 554 (Fla. 4th DCA 1998)
- Holt v. State, 516 So. 2d 25 (Fla. 3d DCA 1987)
- Montanez v. State, 630 So. 2d 1163 (Fla. 3d DCA 1993)
- Turner v. State, 444 So. 2d 974 (Fla. 3d DCA 1983)