ROOSEVELT HOLMES, JR., APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Roosevelt Holmes appeals the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The court affirmed denial of some claims that could have been raised on direct appeal but reversed and remanded other ineffective assistance of counsel claims for evidentiary hearing, clarifying that a prior Rule 1.540 motion filed during direct appeal does not render a subsequent 3.850 motion successive.
Claims #1, #2, and #4 (Fifth Amendment violation, jury racial composition challenge, and prosecutorial misconduct) are affirmed as denied because they could have been raised on direct appeal and are procedurally barred. Claims #3 and #5-9 (ineffective assistance of counsel) are reversed and remanded for evidentiary hearing because they are neither successive nor claims that could have been raised on direct appeal.
[1] A motion filed under Florida Rule of Civil Procedure 1.540 while a direct appeal is pending is treated as a nullity, and a subsequently filed Florida Rule of Criminal Pro…
[2] Claims that could have been raised on direct appeal are procedurally barred when raised in a subsequent postconviction relief 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“as the 1.540 motion was filed and ruled upon while the defendant's direct appeal was pending, the 1.540 motion must be treated as a nullity and a subsequently filed 3.850 motion is not considered a successive motion”
Establishes that a Rule 1.540 motion filed during direct appeal does not render a subsequent 3.850 motion successive.
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Join FLexlaw to unlock all legal intelligenceHolmes was convicted of robbery with a firearm, aggravated battery with a firearm, and grand theft. His convictions and sentences were affirmed on dir…
The full statement of facts, procedural history, and disposition for this case are member content.
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ROTHENBERG, Judge.
The defendant, Roosevelt Holmes, Jr. (“Holmes”), appeals the trial court’s order entered on August 30, 2005, denying his motion for postconviction relief, finding that the motion was procedurally barred because the motion was either successive and/or the claims raised in the motion could have been raised on direct appeal. As we conclude that claims # 1, # 2 and #4 could have been raised on direct appeal, we affirm the denial of the defendant’s motion regarding these claims. As to the remaining claims we reverse and remand for an evidentiary hearing, as they are neither successive nor claims which could have been raised on direct appeal.
Holmes was convicted of robbery with a firearm, aggravated battery with a firearm, and grand theft. His convictions and the sentences imposed were affirmed on appeal on June 23, 2004, Holmes v. State, 878 So. 2d 420 (Fla. 3d DCA 2004), with a mandate being issued on August 20, 2004. During the pendency of the direct appeal and prior to a ruling by this court, Holmes filed a motion for relief of judgment under Florida Rule of Civil Procedure 1.540, which was denied by the trial court on March 13, 2004. Additionally, Holmes filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), wherein he alleged that his habitual violent offender sentence was illegal under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which was also denied by the trial court on August 24, 2004. The instant 3.850 motion was filed on April 8, 2005, and was denied by the trial court as successive and/or because the claims which were made could have been raised on direct appeal and are, therefore, procedurally barred.
We write to explain the understandable confusion which perhaps led to the trial court’s ruling. Generally, Florida Rule of Civil Procedure 1.540 is an improper mechanism to collaterally attack a conviction, see Steinhorst v. State, 636 So. 2d 498, 500 (Fla.1994); Williams v. State, 925 So. 2d 427 (Fla. 3d DCA 2006), and may render a subsequently filed 3.850 motion successive. In this case, however, as the 1.540 motion was filed and ruled upon while the defendant’s direct appeal was pending, the 1.540 motion must be treated as a nullity and a subsequently filed 3.850 motion is not considered a successive motion. See Daniels v. State, 712 So. 2d 765 (Fla.1998).
We, therefore, affirm the denial of claims #1, #2, and # 4, wherein the defendant claims that his Fifth Amendment rights were violated, challenges the racial composition of the jury, and claims that the prosecutor committed prosecutorial misconduct by offering perjured testimony, respectively, since these are claims which could have been raised on direct appeal. We reverse the remaining claims, # 3 and # 5-9 which are based upon allegations of ineffective assistance of counsel and remand for an evidentiary hearing as to those claims.
Affirmed in part; reversed and remanded in part.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Daniels v. State, 712 So. 2d 765 (Fla. 1998)
- Steinhorst v. State, 636 So. 2d 498 (Fla. 1994)
- Readon v. State, 925 So. 2d 427 (Fla. 3d DCA 2006)
- Holmes v. State, 878 So. 2d 420 (Fla. 3d DCA 2004)