MITCHELL D. JACKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jackson appeals the summary denial of his second Rule 3.850 motion for post-conviction relief based on alleged ineffective assistance of counsel. The court affirmed the denial, finding the motion both untimely and successive, and rejecting Jackson's argument that a sister court's decision warranted reconsideration of a previously rejected claim.
The court affirmed the denial of Jackson's second Rule 3.850 motion on two independent grounds: (1) the motion was untimely because it was filed more than two years after the 1990 affirmance of his convictions, exceeding the limitations period under Rule 3.850(b), and (2) the motion was successive, improperly raising an issue that had already been rejected in Jackson's initial Rule 3.850 motion. The court rejected his argument that Fernandez warranted reconsideration.
[1] A motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 is untimely if filed more than two years after the convictions and sentence…
[2] A successive motion for post-conviction relief is improper when the claims raised have already been decided in a prior motion.
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“Pursuant to rule 3.850(b), he had only two years from that date in which to file a motion, absent various exceptions which are not alleged in this cause. Thus his motion is untimely.”
Establishes the primary basis for affirming the denial—the motion exceeded the two-year filing deadline under Rule 3.850(b).
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJackson was convicted of four counts of sexual battery, one count of kidnapping, and one count of aggravated battery. His convictions and sentences we…
The full statement of facts, procedural history, and disposition for this case are member content.
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SHARP, WINIFRED, J., Associate Judge.
Jackson appeals from the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850.. He was convicted of four counts of sexual battery,1 one count of kidnapping,2 and one count of aggravated battery.3 He appealed and his convictions and sentences were affirmed. See Jackson v. State, 567 So. 2d 438 (Fla. 2d DCA 1990). In 1993, he filed a prior motion pursuant to Florida Rule of Criminal Procedure 3.850, which after an evidentiary hearing, was denied. On appeal, the denial was affirmed. See Jackson v. State, 653 So. 2d 1037 (Fla. 2d DCA 1995).
We affirm for two reasons:
1) Jackson’s convictions and sentences were affirmed in 1990, and became final after an appeal. Pursuant to rule 3.850(b), he had only two years from that date in which to file a motion, absent various exceptions which are not alleged in this cause. Thus his motion is untimely.
2) Jackson’s motion is also improper because it is successive. See Jones v. State, 591 So. 2d 911 (Fla.1991). In his initial rule 3.850 motion, Jackson asserted his trial counsel was ineffective because he failed to object when the trial court neglected to administer the jury oath to the prospective jurors. The trial court rejected this claim on procedural and substantive grounds, and the denial order was affirmed.
We reject Jackson’s argument that this issue should be reconsidered in light of Fernandez v. State, 758 So. 2d 1199 (Fla. 4th DCA 2000), which holds that a defendant’s rule 3.850 claim that his trial counsel was ineffective because he did not object when the trial court faded to place prospective jurors under oath, was legally sufficient. A retroactive change in the law must be announced by the Florida Supreme Court or the United States Supreme Court to warrant post-conviction relief, not a sister intermediate court of appeal. See Witt v. State, 387 So. 2d 922 (Fla.1980), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980); Card v. Dugger, 512 So. 2d 829 (Fla.1987).
The balance of Jackson’s arguments lack merit or constitute claims which should have been raised on direct appeal or in the prior rule 3.850 motion.
AFFIRMED.
PALMER, WILLIAM D., Associate Judge, and HARRIS, CHARLES C., Senior Associate Judge, concur. . § 794.011(3), Fla. Stat. . § 787.01(l)(a)(3), Fla. Stat. .§ 784.045, Fla. Stat.
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Ira Demetrius McPHERSON v. State, 138 So. 3d 1201 (Fla. 2d DCA 2014)…roceeding). Neither the Florida Supreme Court nor the United States Supreme Court has announced new law directed to a sentence like Mr. McPherson’s. Accordingly, we conclude that the motion was untimely and without legal basis. See Jackson v. State, 849 So. 2d 321, 322 (Fla. 2d DCA 2003) (“A retroactive change in the law must be announced by the Florida Supreme Court or the United States Supreme Court to warrant post-conviction relief, not a sister intermediate court of appeal.”). Cf La-Fountain v. State, 83…
Authorities Cited
- Witt v. State, 387 So. 2d 922 (Fla. 1980)
- Jones v. State, 591 So. 2d 911 (Fla. 1991)
- Adams v. Peat, 449 U.S. 1067 (U.S. 1980)
- Jarrett v. Jarrett, 449 U.S. 1067 (U.S. 1980)
- Card v. Dugger, 512 So. 2d 829 (Fla. 1987)
- Dennis v. State, 758 So. 2d 1199 (Fla. 4th DCA 2000)