MOSES SHANNON MITCHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's motion for post-conviction relief was successive and therefore improper, even though the trial court's stated reason for denial (untimeliness) was incorrect.
The defendant filed a motion for post-conviction relief, claiming his guilty plea lacked a factual basis. He had previously filed a similar motion whi…
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Mitchell appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. He claims the trial court erred on July 16, 1999, by accepting his guilty plea to strong armed robbery without a factual basis having been established for his plea. We affirm.
The trial court denied the motion as untimely. We think the trial court reached the correct result, although not for that reason. A rule 3.850 motion is timely if filed within two years and thirty days of a judgment and sentence when there has been no direct appeal, as occurred in this case. See Ayo v. State, 708 So. 2d 692 (Fla. 5th DCA 1998). Mitchell was sentenced on July 16, 1999, and this motion was filed on August 8, 2001.
However, Mitchell filed a prior motion pursuant to rule 3.800, in which he asserted that his sentence exceeded the statutory maximum and there was no factual basis for his plea. This motion was denied on the merits and the denial was affirmed on appeal. See Mitchell v. State, 755 So. 2d 185 (Fla. 5th DCA 2000). The motion in this proceeding is therefore successive and improper. See Demps v. State, 770 So. 2d 745 (Fla. 3d DCA 2000).
AFFIRMED.
HARRIS and GRIFFIN, JJ„ concur.
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Hampton v. State, 837 So. 2d 611 (Fla. 5th DCA 2003)…udgment and sentence became final thirty days after they were rendered; i.e., the time his appellate rights expired. See Ayo v. State, 708 So. 2d 692 (Fla. 5th DCA 1998); Davis v. State, 687 So. 2d 292 (Fla. 2d DCA 1997). See also Mitchell v. State, 818 So. 2d 696 (Fla. 5th DCA 2002). Hampton thus had until August 23, 2002, in which to file his motion. Since he filed it on August 19, 2002, it was timely. REVERSED and REMANDED. THOMPSON, C.J., and MONACO, J, concur.…
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Cleland Ralph Wheeler v. State, 896 So. 2d 956 (Fla. 5th DCA 2005)…PER CURIAM. DISMISSED. See Mitchell v. State, 818 So. 2d 696 (Fla. 5th DCA 2002). THOMPSON, PLEUS and ORFINGER, JJ., concur.…
Authorities Cited
- AYO v. State, 708 So. 2d 692 (Fla. 5th DCA 1998)
- Seain C. Hull v. State, 708 So. 2d 692 (Fla. 5th DCA 1998)
- F.V. v. State, 770 So. 2d 745 (Fla. 4th DCA 2000)
- Wells v. The Oceanage Ass'n, Inc., 755 So. 2d 185 (Fla. 4th DCA 2000)