RICHARD FREW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard Frew appealed the denial of his successive motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, arguing the trial court abused its discretion by dismissing it as successive without addressing the merits. The court held that because the first motion was dismissed for facial insufficiency rather than on the merits, the trial court lacked discretion to summarily dismiss the second motion and must consider it on the merits.
The court held that the trial court's discretionary power to dismiss successive 3.850 motions under Rule 3.850(f) does not apply when the previous motion was summarily denied or dismissed for legal insufficiency. Because Frew's first motion was dismissed for facial insufficiency and not on the merits, the trial court could not dismiss the second motion as successive abuse of procedure and must reconsider it on the merits.
[1] A successive motion for postconviction relief may not be dismissed as an abuse of procedure if the prior motion was dismissed for legal insufficiency rather than on the m…
[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“This discretionary ability does not apply when the previous motion was summarily denied or dismissed for legal insufficiency.”
Establishes the critical limitation on the trial court's power to dismiss successive motions—it does not apply when prior motion was dismissed for insufficient pleading rather than on the merits.
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Join FLexlaw to unlock all legal intelligenceFrew was convicted of second-degree murder in 2003, and this court affirmed on direct appeal. He filed his first 3.850 motion in March 2005, raising o…
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ALTENBERND, Judge.
Richard Frew appeals the trial court’s denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 on the grounds that his filing of a successive motion was an abuse of procedure. We reverse.
A jury convicted Mr. Frew of second-degree murder in 2003. This court affirmed his judgment and sentence without a written opinion. Frew v. State, 871 So. 2d 222 (Fla. 2d DCA 2004) (table). He filed his first timely motion for postconviction relief pursuant to rule 3.850 in March 2005. That first motion was facially insufficient because it only alleged that the trial court committed fundamental error within the jury instructions. The trial court correctly dismissed that motion because it raised an issue that should have been raised on direct appeal and, therefore, was not cognizable in a postconviction proceeding.
Mr. Frew did not appeal the order of dismissal. Instead, he filed another motion for postconviction relief raising numerous grounds. At least one of the grounds argued in this second motion ap pears to be facially sufficient. He claims that his attorney was ineffective for failing to move to suppress his confession, which allegedly was critical evidence in the case and which allegedly was obtained after a waiver of his Miranda1 rights while he was extremely intoxicated.
The trial court did not reach the merits of this motion, but denied it as a successive motion that was an abuse of procedure under rule 3.850(f). We must disagree.
Rule 3.850(f) grants the postconviction court discretion to dismiss successive rule 3.850 motions:
(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.
Fla. R.Crim. P. 3.850(f).
However, this power is not absolute. This discretionary ability does not apply when the previous motion was summarily denied or dismissed for legal insufficiency. See McCrae v. State, 437 So. 2d 1388, 1390 (Fla.1983); Wright v. State, 741 So. 2d 1146, 1147 (Fla. 2d DCA 1999); Hyacinthe v. State, 940 So. 2d 1280, 1281 (Fla. 4th DCA 2006). Moreover, nothing in the record before this court suggests that Mr. Frew abused judicial procedures by adding grounds to his motion when he made a second attempt to allege a facially sufficient claim. See Mancebo v. State, 931 So. 2d 928, 929 (Fla. 3d DCA 2006) (holding that the movant was allowed to attempt to allege legally sufficient claims in a second timely rule 3.850 motion when his prior motion had not been denied on the merits); see also Hyacinthe, 940 So. 2d at 1281 (holding that “[t]he abuse of process doctrine does not apply where the trial court has not previously ruled on the merits of a post-conviction claim in the case and the movant seeks to raise new claims in a different motion”).
Accordingly, we reverse and remand for reconsideration by the postconviction court on the merits.
Reversed and remanded.
CASANUEVA and CANADY, JJ., Concur. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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Citator
Cited By
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Spera v. State, 971 So. 2d 754 (Fla. 2007)…that the prohibition against successive motions applies “only when the grounds raised were previously adjudicated on their merits, and not where the previous motion was summarily denied or dismissed for legal insufficiency”); see also Frew v. State, 947 So. 2d 1275, 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…
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Waiter v. State, 965 So. 2d 861 (Fla. 2d DCA 2007)…ned by these rules. However, this discretionary power is not absolute and does not apply when the previous motion was denied not on the merits but as untimely. See Love v. State, 814 So. 2d 475, 478 (Fla. 4th DCA 2002); see generally Frew v. State, 947 So. 2d 1275 (Fla. 2d DCA 2007); Maybin v. State, 884 So. 2d 1174 (Fla. 2d DCA 2004). In the present case, the postconviction court did not rule on the merits of the first rule 3.850 motion. Therefore, the dismissal of the second rule 3.850 motion was erroneous…
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Cliff Verity v. State, 56 So. 3d 77 (Fla. 2d DCA 2011)…lack of a prior decision on the merits as to a timely claim is crucial: it will generally bar the postcon-viction court from dismissing a motion as successive.” Crescenzo v. State, 987 So. 2d 150, 151 (Fla. 2d DCA 2008). Similarly, in Frew v. State, 947 So. 2d 1275, 1276 (Fla. 2d DCA 2007), we reversed the circuit court’s order dismissing a successive motion under rule 3.850(f) because there was no suggestion that the defendant abused the postconviction procedure when he attempted to file an amended motion. W…
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
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966)
- McCRAE v. State, 437 So. 2d 1388 (Fla. 1983)
- Wright v. State, 741 So. 2d 1146 (Fla. 2d DCA 1999)
- Mancebo v. State, 931 So. 2d 928 (Fla. 3d DCA 2006)
- Nedor Hyacinthe v. State, 940 So. 2d 1280 (Fla. 4th DCA 2006)