CARL GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2003-12-05
No. 5D03-3416
MONACO and TORPY, JJ., concur.
860 So. 2d 1055 Florida District Court of Appeal, Fifth District (2003)

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Synopsis

Carl Green appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion challenging his 1996 guilty plea conviction for armed burglary and related offenses. Green argues his plea was involuntary because he was not represented by counsel and was not advised of his right to counsel or the potential use of his conviction for sentence enhancement. The court affirms, finding the motion untimely and rejecting both substantive claims.


Holding

The motion was untimely under Rule 3.850's two-year time limit, which commenced from the October 3, 1996 sentencing date. Green failed to allege facts qualifying for any exception to the time limit, particularly because he was aware of the lack of counsel representation at the time of his plea. Additionally, there is no requirement that a trial court advise a defendant that a conviction may be used to enhance future sentences.


Headnotes

[1] A motion filed pursuant to Florida Rule of Criminal Procedure 3.850 is subject to a two-year time limit, commencing from the date of sentencing, unless specific exception…

[2] The two-year time limit for filing a motion under Florida Rule of Criminal Procedure 3.850 may be extended if the facts alleged are newly discovered and could not have be…

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Key Quotes

“Green was sentenced on October 3, 1996, and took no appeal. That was the definitive date from which the time limits stated in rule 3.850 commenced to run in this case.”

Establishes that the two-year limitations period for 3.850 motions runs from sentencing, making Green's 2003 filing untimely.

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Facts & Procedural History

Green was convicted in 1996 of armed burglary, aggravated assault, obstructing an officer with violence, and carrying a concealed firearm based on his…

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Opinion of the Court
SHARP, W., J.

[*1056] SHARP, W., J.

Green appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. He seeks to challenge his conviction and sentence in 1996 for armed burglary, aggravated assault, obstructing an officer with violence and carrying a concealed firearm, on the basis that his plea of guilty in that case was involuntary because he was not represented by counsel. Green alleges the trial court failed to advise him of his right to counsel, although he had been declared indigent, and he alleges he did not waive the right to counsel. He also alleges the court failed to advise him of the possibility that his conviction in that case could be used to enhance a criminal sentence he might receive in the future. We affirm.

The trial court correctly ruled that this motion is untimely. Green was sentenced on October 3, 1996, and took no appeal. That was the definitive date from which the time limits stated in rule 3.850 commenced to run in this case.1 Green filed this motion on September 15, 2003, well beyond the two year time limit set forth in the rule, and he failed to allege that he qualified for any of the exceptions to that two year time limit. Rule 3.850 provides exceptions to the two year time limit when the facts alleged in the motion as the basis for the motion are newly discovered, and could not have been ascertained by due diligence or if they constitute a new fundamental constitutional right which applies retroactively, or if retained counsel failed to file a timely motion, as agreed to and promised. It is difficult to see how Green could make such allegations in this case because he was aware that he was not represented at the time of his plea, and he does not allege he was unaware of that right or could not have ascertained his right to counsel within two years of the plea.

In addition, there is no requirement that a trial court advise a defendant that his conviction resulting from a plea could be used in the future to enhance future criminal sentences. See Major v. State, 814 So. 2d 424 (Fla.2002). See also McKowen v. State, 831 So. 2d 794 (Fla. 5th DCA 2002); Jerry v. State, 816 So. 2d 1247 (Fla. 5th DCA), rev. denied, 837 So. 2d 410 (Fla.2003).

AFFIRMED.

MONACO and TORPY, JJ., concur. . The fact that Green was placed on probation and that his probation was later revoked because he committed subsequent crimes, does not extend the time period under rule 3.850 for him to seek to withdraw his plea, or to bring other collateral attacks on his convictions in this case. See Green v. State, 828 So. 2d 462 (Fla. 5th DCA 2002), rev. denied, 842 So. 2d 844 (Fla.2003) (appealing new conviction and revocation of probation).


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