MARION J. RUSSELL, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Marion Russell, convicted under Florida's RICO statute, sought habeas relief based on ineffective assistance of appellate counsel. The court denied his petition as untimely filed under Florida Rule of Appellate Procedure 9.140(j), which imposed a two-year deadline beginning January 1, 1997.
The petition was untimely and therefore denied. The two-year filing window under rule 9.140(j) began on January 1, 1997, meaning Russell had until January 1, 1999, to file his petition. His February 13, 1999 filing exceeded this deadline.
[1] Claims of ineffective assistance of appellate counsel must be raised in a separate proceeding before the appellate court that handled the direct appeal.
[2] Florida Rule of Appellate Procedure 9.140(j)(3)(B) imposes a two-year time limit for filing an ineffective assistance of appellate counsel petition in the appellate court…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Florida Rule of Appellate Procedure 9.140© contains a two-year time limit for filing an ineffective assistance of appellate counsel petition in the appellate court that handled the direct appeal.”
Establishes the applicable time-limit rule governing ineffective assistance of appellate counsel petitions
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRussell pled guilty to and was convicted of violating Florida's Racketeer Influenced and Corrupt Organization Act. He appealed his sentence, which was…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Rule 3.850 Motion cases and more on FLexlaw
PER CURIAM.
Petitioner pled guilty to and was convicted of violating the Florida Racketeer Influenced and Corrupt Organization Act, sections 895.01 et seq., Florida Statutes (1991). He appealed his sentence to this court, and this court affirmed the sentence. See Russell v. State, 675 So. 2d 961 (Fla. 1st DCA), cert. denied, 682 So. 2d 1100 (Fla.1996). He then filed a rule 3.850 motion, raising, among others, a claim that his appellate counsel was ineffective. He noted, however, that he believed the ineffective assistance of appellate counsel claim might need to be raised in a separate proceeding before this court, which handled the direct appeal.
The trial court denied the motion and in its order confirmed petitioner’s suspicion that the ineffective assistance of appellate counsel claim must be raised in a separate proceeding before this court. Petitioner appealed the trial court’s denial of his rule 3.850 motion, but rather than file an ineffective assistance of appellate counsel claim via a rule 9.140(j) petition, he filed motions alternately seeking permission from this court to continue raising his ineffective assistance of appellate counsel claim within his rule 3.850 motion, or a declaration that he did indeed need to raise his ineffective assistance of appellate counsel claim in a separate proceeding before this court. He then filed an emergency motion seeking an enlargement of time in which to file an ineffective assistance of appellate counsel claim. This court denied the motions. Petitioner filed an ineffective assistance of appellate counsel claim via a habeas corpus petition on February 13, 1999.
Florida Rule of Appellate Procedure 9.140© contains a two-year time limit for filing an ineffective assistance of appellate counsel petition in the appellate court that handled the direct appeal. See Fla. R.App. Proc. 9.140(j)(3)(B). However, the two-year time limit did not begin to run until the rule became effective on January 1, 1997. See Fla. R.App. Proc. 9.140(j)(3)(C); In re Amendments to The Florida Rules of Appellate Procedure, 696 So. 2d 1103, 1107 (Fla.1996). Petitioner’s case is governed by the two-year filing window that began on January 1, 1997. Petitioner had until January 1, 1999, to file his petition for ineffective assistance of appellate counsel, but he failed to do so. Therefore, petitioner’s petition is denied as untimely filed.
DENIED.
JOANOS, ALLEN and DAVIS, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Whitworth v. State, 742 So. 2d 397 (Fla. 2d DCA 1999)…on seeking a belated appeal under Florida Rule of Appellate Procedure 9.140(j)(l), see Hawkins v. State, 706 So. 2d 941 (Fla. 1st DCA 1998), and deny it as untimely filed. See Fla. R.App. P. 9.140(j)(3)(A); Russell v. State, 24 Fla. L. Weekly D1542, 740 So. 2d 567 (Fla. 1st DCA 1999). GREEN, A.C.J., and SALCINES and DAVIS, JJ., Concur.…
-
Nairn v. State, 816 So. 2d 220 (Fla. 1st DCA 2002)…PER CURIAM. Affirmed. See Russell v. State, 740 So. 2d 567, 567 (Fla. 1st DCA 1999) (stating that the Florida Rules of Appellate Procedure require a claim of ineffective assistance of appellate counsel to be filed “in the appellate court that handled the direct appeal”); Johnson v. State, 694 So. 2d 159, 15…
-
Wilson v. State, 845 So. 2d 236 (Fla. 2d DCA 2003)…less Wilson properly invoked the exception under the rule, the two-year time period for him to file a petition alleging ineffective assistance of appellate counsel began to run on January 1, 1997, and expired on January 1,1999. See Russell v. State, 740 So. 2d 567, 568 (Fla. 1st DCA 1999). Wilson’s petition did not contain any sworn statement that he was affirmatively misled by counsel about the results of the appeal, and it did not contain any other information explaining the nearly ten-year delay in seekin…
Authorities Cited
- Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla. 1996)
- Russell v. State, 675 So. 2d 961 (Fla. 1st DCA 1996)