BILLY RAY MCABEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Billy Ray McAbee appealed the denial of his Rule 3.850 postconviction motion raising ineffective assistance of counsel claims. The appellate court affirmed the denial of the original claims but reversed and remanded because the trial court failed to address two additional claims McAbee added by amendment before the final order was issued.
The trial court erred by failing to consider the merits of the two additional claims raised in the amendment. Because the amendment was filed before a final order disposing of all claims and within the two-year statutory period, the trial court was obligated to address those claims.
[1] A trial court errs in failing to consider new claims of ineffective assistance of counsel raised in an amended motion when the amended motion was filed before the final o…
[2] A trial court must rule on the merits of new allegations in a rule 3.850 amendment, even if an order denying the original motion in part has been entered, as long as a fi…
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Join FLexlaw to unlock all legal intelligence“the trial court erred in failing to consider the two additional issues”
Establishes the core holding that the trial court failed to address the amended claims
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Join FLexlaw to unlock all legal intelligenceMcAbee filed a postconviction motion on March 31, 2000, raising eight ineffective assistance of counsel claims. The trial court denied three claims an…
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COVINGTON, Judge.
Billy Ray McAbee appeals the denial of his posteonviction motion pursuant to Florida Rule of Criminal Procedure 3.850. McAbee filed his original postconviction motion on March 31, 2000, raising eight claims of ineffective assistance of counsel. The trial court issued an order denying three of McAbee’s claims and ordering the State to respond to the remaining five.
Before the State responded to the court’s order, McAbee filed a pro se motion to amend in order to add two new claims of ineffective assistance of counsel. Neither the State’s response nor the trial court order granting an evidentiary hearing addressed McAbee’s two new claims. Following the May 2, 2002, evidentiary hearing, the trial court entered its order denying the postconviction relief on the original claims. Apparently, the trial court never ruled on McAbee’s motion to amend.
In a pro se brief, McAbee argues on appeal that the trial court erred in failing to consider the two issues in his amended motion. McAbee filed his motion to amend before the final order on his original motion issued and before the statutory time limit of two years from the June 7, 1999, appellate mandate expired. See McAbee v. State, 736 So. 2d 1190 (Fla. 2d DCA 1999) (table decision). Consequently, the trial court erred in failing to consider the two additional issues. See Gaskin v. State, 737 So. 2d 509, 517-18 (Fla.1999); Ramirez v. State, 854 So. 2d 805, 806-07 (Fla. 2d DCA 2003) (holding trial court erred in not considering merits of new allegations in rule 3.850 amendment, even though order denying original motion in part had been entered, where court had not entered final order disposing of original motion); Beard v. State, 827 So. 2d 1021, 1021 (Fla. 2d DCA 2002); Lang v. State, 826 So. 2d 433, 435 (Fla. 2d DCA 2002); Harris v. State, 826 So. 2d 340, 341 (Fla. 2d DCA 2002) (holding failure to rule on merits of supplement was error). Accordingly, we affirm without further discussion the denial of the original motion for postconviction relief but remand for the trial court to consider the two additional issues McAbee raised in his amendment.
Affirmed in part, reversed in part, and remanded.
STRINGER and VILLANTI, JJ„ concur.
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Padro-Guerrero v. State, 123 So. 3d 670 (Fla. 5th DCA 2013)…y time limit and before trial court ruled on original rule 3.850 motion, on the ground that new claims set forth in amended motion were procedurally barred), receded from on other grounds, Nelson v. State, 875 So. 2d 579 (Fla.2004); McAbee v. State, 873 So. 2d 545 (Fla. 2d DCA 2004) (remanding for consideration of two supplemental issues that trial court failed to rule on in final order denying postconviction relief). It appears that Padro-Guerrero’s supplemental motion fell through the cracks and the trial…
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Molfetto v. State, 955 So. 2d 1153 (Fla. 2d DCA 2007)…n that date. However, because the amended motions were timely filed and were pending when the postconviction court resolved the original motion, we reverse and remand for the postconviction court to consider the amended motions. See McAbee v. State, 873 So. 2d 545 (Fla. 2d DCA 2004); Ramirez v. State, 854 So. 2d 805 (Fla. 2d DCA 2003). Regarding the original postconviction motion, we affirm the denial of relief under grounds one through twenty-one and ground twenty-three without comment. As to ground twenty-…
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Cherenfant v. State, 989 So. 2d 1266 (Fla. 2d DCA 2008)…inal claims. However, because the amended motion was timely filed and pending when the postconviction court ruled on the original motion, we reverse and remand for consideration of the additional issues raised by Mr. Cherenfant. See McAbee v. State, 873 So. 2d 545, 545 (Fla. 2d DCA 2004); Ramirez v. State, 854 So. 2d 805, 806-07 (Fla. 2d DCA 2003). Reversed and remanded. CASANUEVA and WALLACE, JJ., Concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gaskin v. State, 737 So. 2d 509 (Fla. 1999)
- Beard v. State, 827 So. 2d 1021 (Fla. 2d DCA 2002)
- Ramirez v. State, 854 So. 2d 805 (Fla. 2d DCA 2003)
- Damien Harris v. State, 826 So. 2d 340 (Fla. 2d DCA 2002)
- Gooch Support Sys., Inc. v. Mahaleel Lee Luster, 826 So. 2d 433 (Fla. 4th DCA 2002)
- Lang v. State, 826 So. 2d 433 (Fla. 2d DCA 2002)