RONNIE FRALEY, PETITIONER/APPELLANT,
v.
THE STATE OF FLORIDA, RESPONDENT/APPELLEE
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Ronnie Fraley appeals the denial of his motion for postconviction relief and petitions for habeas corpus, arguing his attempted murder convictions should be set aside because attempted first degree felony murder was abolished by State v. Gray. The court holds that Fraley's convictions became final in 1994 when the original appeal mandate issued, before Gray was decided, and therefore he is not entitled to relief.
Fraley is not entitled to relief. His convictions became final for purposes of the Gray decision when this court issued its mandate in 1994 affirming the attempted murder counts, which was before Gray abolished attempted first degree felony murder. Appointed counsel correctly declined to pursue this issue in the post-resentencing appeal and properly filed an Anders brief.
[1] A conviction becomes final for purposes of applying a new rule of law when the mandate issues on direct appeal, even if resentencing occurs thereafter.
[2] A defendant is not entitled to relief based on the abolition of an offense if the conviction for that offense was affirmed on direct appeal prior to the abolition.
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Join FLexlaw to unlock all legal intelligence“the convictions for attempted murder became "final" for Gray purposes when this court issued its mandate in 1994 in connection with defendant's original appeal”
Establishes the critical timing for when convictions became final and therefore not subject to retroactive application of Gray
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Join FLexlaw to unlock all legal intelligenceFraley was convicted of one count of attempted first degree murder and two counts of attempted first degree murder of a law enforcement officer. The s…
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COPE, J.
In these consolidated cases Ronnie Fra-ley appeals an order denying his motion for postconviction relief, and also petitions for a writ of habeas corpus, asserting that his appointed counsel was ineffective. We conclude that Fraley (“defendant”) is not entitled to relief.
Defendant contends that his convictions on one count of attempted first degree murder, and two counts of attempted first degree murder of a law enforcement officer, should be set aside. The state prosecuted each count on alternative theories of attempted first degree premeditated murder and attempted first degree felony murder. Defendant argues that since the offense of attempted first degree felony murder has been abolished, these three convictions cannot stand.
We conclude that defendant is not entitled to the relief he seeks. Defendant’s original appeal to this court was decided in 1994. See Fraley v. State, 641 So. 2d 128 (Fla. 3d DCA 1994). While certain other counts were reversed, the three attempted murder counts were affirmed. The case was remanded for resentencing. See id. at 129-30. This occurred the year prior to the Florida Supreme Court’s decision in State v. Gray, 654 So. 2d 552 (Fla.1995), which abolished the offense of attempted first degree felony murder. See also State v. Woodley, 695 So. 2d 297 (Fla.1997).
The Gray decision held that it would “be applied to all cases pending on direct review or not yet final.” 654 So. 2d at 554. Defendant points out that he was twice resentenced after remand,1 once after Gray had been announced, and that his post-resentencing appeal was not decided until 1997 — also after Gray had been announced. He argues 'that since his case did not come to an end until 1997, he is entitled to claim the benefit of Gray.
We reject defendant’s argument and agree with the Second District that the convictions for attempted murder became “final” for Gray purposes when this court issued its mandate in 1994 in connection with defendant’s original appeal. See Walker v. State, 715 So. 2d 1065 (Fla. 2d DCA 1998). At that point defendant’s convictions for attempted murder were affirmed. All that remained was resentencing in light of the fact that certain other convictions had been vacated. See Fraley, 641 So. 2d at 129-30. Appointed counsel was entirely correct in declining to pursue this issue in defendant’s post-resentencing appeal,2 and her decision to file an Anders brief was correct. Likewise, there was no error in the trial court’s denial of posteon-viction relief on this issue.
We have reviewed the defendant’s remaining posteonviction claims. Assuming that they are not procedurally barred, we conclude that they are without merit.
Habeas corpus denied; order denying posteonviction relief affirmed.
. Defendant was resenlenced prematurely in 1994 after the opinion in Fraley v. State, 641 So. 2d 128, was issued, but before the motion for rehearing had been disposed of. In 1996 there was a second resentencing.
. Fraley v. State, 696 So. 2d 355 (Fla. 3d DCA 19.97) (affirmance, without opinion).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- State v. Woodley, 695 So. 2d 297 (Fla. 1997)
- Fraley v. State, 641 So. 2d 128 (Fla. 3d DCA 1994)
- Walker v. State, 715 So. 2d 1065 (Fla. 2d DCA 1998)