MARIO J. MANCEBO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Mario Mancebo appeals the denial of his second postconviction motion under Florida Rule of Criminal Procedure 3.850, challenging the trial court's finding that the motion was impermissibly successive. The appellate court reversed, holding that the successiveness bar did not apply because the first motion was denied for legal insufficiency rather than on the merits, allowing Mancebo to file an amended pleading with more developed claims.
The successiveness bar does not apply when the first motion was denied for legal insufficiency rather than on the merits. Because the 2003 motion's denial did not constitute a decision on the merits and the time limit had not expired, Mancebo was entitled to file a second motion as an amended pleading with more legally sufficient allegations.
[1] A successive motion for postconviction relief may not be dismissed as an abuse of procedure when the prior motion was dismissed for legal insufficiency.
[2] A trial court's discretion to dismiss a successive postconviction motion under Rule 3.850(f) does not apply when the prior motion was summarily denied or dismissed for le…
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Join FLexlaw to unlock all legal intelligence“A second or successive motion may be dismissed if the judge finds that 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 judge finds that the failure of the movant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.”
Sets forth the legal standard for when successive motions may be dismissed under Rule 3.850(f).
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Join FLexlaw to unlock all legal intelligenceMancebo was convicted of armed robbery. His conviction and sentence were affirmed on direct appeal and the Florida Supreme Court denied review. In 200…
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COPE, C.J.
Mario J. Mancebo appeals an order denying his second motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We remand for further proceedings.
The trial court denied the motion filed by defendant-appellant Mancebo as being impermissibly successive. We conclude that the bar of successiveness does not apply under the facts of this case.
The defendant was convicted of armed robbery. The conviction and sentence were affirmed by this court and the Florida Supreme Court denied review. See Mancebo v. State, 793 So. 2d 1093 (Fla. 3d DCA 2001), review denied, 819 So. 2d 137 (Fla.2002).
The defendant filed a timely Rule 3.850 motion (“the 2003 motion”). The trial court summarily denied the 2003 motion in a form order which stated in part that the court had examined the “motion and finding that the allegations contained therein do not constitute legal grounds for granting the New Trial or release of the prisoner, and the motion being insufficient in substance to support the relief prayed, ... the motion ... is hereby denied.” Order, July 1, 2003.
In 2004, the defendant filed a timely Rule 3.850 motion, (“the 2004 motion”). The trial court denied the motion stating that it “is duplicitous — this court has already denied the allegations as refuted by the trial transcripts and the record, and as not meeting the second prong of Strickland v. Washington, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] (see attached transcript).” Order, July 8, 2005. Attached was the transcript of the argument of counsel on the 2004 motion.
We conclude that the bar of successiveness was not properly applied here. Rule 3.850(f) provides as follows:
(f) Successive Motions. A second or successive motion may be dismissed if the judge finds that 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 judge finds that the failure of the movant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.
When the trial court denied the 2003 motion, it did not indicate that the denial was on the merits. There were no record excerpts attached to the order of denial. Instead, the language used in the 2003 order stated that the allegations of the motion did not constitute legal grounds for relief, and that the motion was insufficient in substance to support the relief prayed. This was a denial for legal insufficiency. See Roth v. State, 479 So. 2d 848, 849 (Fla. 3d DCA 1985).
Because there was no denial on the merits and the 3.850 time limit had not expired, the defendant was allowed to file a second Rule 3.850 motion in an attempt to allege legally sufficient claims. The 2004 motion amounted to an amended pleading, since it raised the same eight issues but with a modified or restated text.
Under this court’s standard of review, we must reverse the summary denial of a postconviction motion unless the record shows conclusively that the appellant is not entitled to relief. See Fla. R.App. P. 9.141(b)(2)(D). Because the record now before us fails to make the required showing, we reverse the order of denial and remand for an evidentiary hearing or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.
Reversed and remanded for further proceedings consistent herewith.
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Spera v. State, 971 So. 2d 754 (Fla. 2007)…1276 (Fla. 2d DCA 2007) (stating that the circuit [*759] court’s discretion to dismiss a motion as successive under rule 3.850(f) “does not apply when the previous motion was summarily denied or dismissed for legal insufficiency”); Mancebo v. State, 931 So. 2d 928, 929 (Fla. 3d DCA 2006) (“Because there was no denial on the merits and the 3.850 time limit had not expired, the defendant was allowed to file a second Rule 3.850 motion in an attempt to allege legally sufficient claims.”). Under rule 3.850(f), the…
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Nedor Hyacinthe v. State, 940 So. 2d 1280 (Fla. 4th DCA 2006)…eded from on other grounds, Nelson v. State, 875 So. 2d 579 (Fla.2004); Harris v. State, 826 So. 2d 340 (Fla. 2d DCA 2002). Hyacinthe’s motion was not successive because the prior motions were not determined on the merits. See also Mancebo v. State, 931 So. 2d 928 (Fla. 3d DCA 2006). We reverse the summary denial of the motion for post-conviction relief and remand for the trial court to consider the motion on its merits. STONE, POLEN and HAZOURI, JJ., concur.…
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McKENLEY v. State, 937 So. 2d 223 (Fla. 3d DCA 2006)…own at the time of the initial motion. Christopher v. State, 489 So. 2d 22, 24 (Fla.1986). The movant must also show justification for the failure to raise the asserted issues in the initial motion. Id. The defendant’s reliance on Mancebo v. State, 931 So. 2d 928 (Fla. 3d DCA 2006), is misplaced because it is distinguishable from the instant case. In Mancebo, we found that the bar on filing successive motions for post-conviction relief did not apply to the facts of that case because the initial motion did no…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Hatcher v. Miller, 479 So. 2d 848 (Fla. 1st DCA 1985)
- Roth v. State, 479 So. 2d 848 (Fla. 3d DCA 1985)
- Mancebo v. State, 793 So. 2d 1093 (Fla. 3d DCA 2001)