GUSTAVO RAMIREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gustavo Ramirez appealed the trial court's summary denial of his post-conviction relief motion as successive. The appellate court reversed, holding that Ramirez's first motion, though denominated as post-conviction relief, only raised sentencing errors and should be treated as a motion to correct an illegal sentence, making his second motion challenging ineffective assistance of counsel not successive.
The court reversed, holding that Ramirez's first motion should be treated as a motion to correct an illegal sentence rather than a true post-conviction motion, and therefore his second motion raising ineffective assistance claims was not successive. The court also noted the trial court should have dismissed rather than denied the motion if it were successive.
[1] A successive motion for post-conviction relief may be dismissed if it fails to allege new or different grounds for relief and the prior determination was on the merits, o…
[2] To overcome the bar to a successive post-conviction motion, a movant must allege that the grounds asserted were not known and could not have been known to them at the tim…
Previewing 2 of 5 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“A successive motion may be dismissed if it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the failure to raise those issues in a prior motion constitutes an abuse of process.”
Establishes the legal standard for determining whether a post-conviction motion is properly successive under Foster v. State
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRamirez filed a first post-conviction relief motion that raised only sentencing errors. He then filed a second post-conviction relief motion arguing i…
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STRINGER, Judge.
Gustavo Ramirez appeals the order summarily denying his timely motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied Ramirez’s second post-conviction relief motion as successive. We disagree and'reverse the trial court’s order denying Ramirez relief.
The prior motion filed by Ramirez, even though denominated a motion for postconviction relief, only raised sentencing errors. The second motion for post-conviction relief filed by Ramirez argued that-he received ineffective assistance from his trial counsel. The trial court reviewed the second motion and determined that Ramirez had failed to allege a reason for his piecemeal filing of the postconviction relief claim, and pursuant to Foster v. State, 614 So. 2d 455 (Fla.1992), the court denied the motion as successive.
However, in Foster the supreme court explained:
A successive motion may be dismissed if it-fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the failure to raise those issues in a prior motion constitutes an' abuse of process. Fla. R.Crim. P. 3.850. To overcome this bar, a movant must allege that the grounds asserted were not known and could not have been known to him at the time of the earlier motion. Christopher v. State, 489 So. 2d 22, 24 (Fla.1986). The movant must show justification for the failure to raise the issues in the prior motions.' Id.
Foster, 614 So. 2d at 458.
Therefore, based on the language in Foster, the trial court properly should have dismissed Ramirez’s motion, -rather than denying it. Further, pursuant to Kelly v. State, 712 So. 2d 780 (Fla. 2d DCA 1998), the second motion was not a successive postconviction motion since Ramirez’s original motion only raised claims that his sentence was illegal. In Kelly, this court held that where a defendant’s first collateral motion merely attacked the legality of his sentence, the court (for purposes of determining whether a second postconviction motion is successive) should have considered that motion based on its substance, not its title. Under the circumstances of this case, Ramirez’s first motion should be treated as a motion to correct illegal sentence, not a postconviction motion. •
Accordingly, we reverse the trial court’s order and remand for further proceedings in accordance with this opinion.
Reversed and remanded for further proceedings.
ALTENBERND and SALCINES, JJ., Concur.
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Merlan Davis v. State, 953 So. 2d 612 (Fla. 2d DCA 2007)…tion a rule 3.850 motion. Yet, because that motion challenged the legality of his sentences, we treated it on appeal as a rule 3.800(a) motion. See Davis, 800 So. 2d 656. The order on appeal here attacks Mr. Davis’ convictions. See Ramirez v. State, 822 So. 2d 593 (Fla. 2d DCA 2002); Kelly v. State, 712 So. 2d 780 (Fla. 2d DCA 1998). As for the facial sufficiency of the rule 3.850 motion, only one claim warrants further consideration. Mr. Davis claims that his trial counsel was ineffective for misadvising hi…
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Felder v. State, 853 So. 2d 473 (Fla. 4th DCA 2003)…ed claims concerning the legality of his sentencing. His present motion raises an ineffective assistance of counsel claim, a claim we feel, given the circumstances of this case, warrants review by the trial court on the merits. See Ramirez v. State, 822 So. 2d 593 (Fla. 2d DCA 2002) Accordingly, we reverse and remand for further proceedings. GUNTHER, KLEIN and TAYLOR, JJ., concur.…
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Rivas v. State, 906 So. 2d 1193 (Fla. 3d DCA 2005)…ctive assistance of trial counsel claims. Because the previous motions either sought relief pursuant to Rule 3.800 or an extension of time to file a Rule 3.850 motion, the court erred in denying the June 4 motion as successive. See Ramirez v. State, 822 So. 2d 593, 594 (Fla. 2d DCA 2002). Accordingly, we reverse and remand for consideration of the June 4 motion. Reversed and remanded. . The state concedes that the June 4 motion was filed timely.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tortoise Island Cmtys., Inc. v. The Moorings Ass'n, Inc., 489 So. 2d 22 (Fla. 1986)
- Foster v. State, 614 So. 2d 455 (Fla. 1992)
- Hill v. Unemployment Appeals Comm'n, 712 So. 2d 780 (Fla. 5th DCA 1998)