SHANNON GOULD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A motion for postconviction relief filed solely to obtain a belated appeal does not render a subsequent motion successive if the latter motion alleges ineffective assistance of counsel on other grounds.
Appellant filed a motion for postconviction relief, which the circuit court denied as successive. The circuit court believed the motion was successive…
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NORTHCUTT, Judge.
Shannon Gould appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The circuit court denied Gould’s motion in the belief that it was successive. The court was mistaken. Therefore, we reverse and remand for further proceedings.
In his rule 3.850 motion, Gould alleged four ineffective assistance of counsel claims. The postconviction court, relying on Vining v. State, 827 So. 2d 201, 213 (Fla.2002), denied Gould’s motion as successive because Gould had previously filed a motion alleging that his counsel was ineffective for failing to file a direct appeal.
However, “[a] motion for post-conviction relief filed solely for the purpose of obtaining a belated appeal does not render a subsequent post-conviction relief motion successive when the latter motion alleges ineffective assistance of counsel based on other grounds.” Reed v. State, 768 So. 2d 1239, 1239 (Fla. 3d DCA 2000); Owens v. State, 721 So. 2d 1210, 1211 (Fla. 1st DCA 1998); Kiser v. State, 649 So. 2d 333, 334 (Fla. 1st DCA 1995). Gould’s January 5, 2004, petition was filed solely for the purpose of obtaining a belated appeal in circuit court case CF-02-03433A-XX. Gould’s June 15, 2006, rule 3.850 motion alleged four ineffective assistance of counsel claims based on other grounds. Therefore, Gould’s June 15, 2006, rule 3.850 motion is not successive.
Accordingly, we reverse the postconviction court’s order and remand for the post-conviction court to reconsider the June 15, 2006, rule 3.850 motion.
Reversed and remanded.
CASANUEVA and VILLANTI, JJ„ Concur.
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Schrack v. State, 958 So. 2d 985 (Fla. 4th DCA 2007)…t does not address all of the claims for post-conviction relief will be remanded for entry of an order that does. See Barber v. State, 851 So. 2d 911 (Fla. 3d DCA 2003); Currelly v. State, 801 So. 2d 1000 (Fla. 2d DCA 2001); see also Gomez v. State, 948 So. 2d 911 (Fla. 2d DCA 2007) (affirming summary denial of defendant’s rule 3.850 motion, but reversing with respect to supplemental motion— which the trial court apparently failed to rule on — and remanding for post-conviction court to consider such). We ther…
Authorities Cited
- Vining v. State, 827 So. 2d 201 (Fla. 2002)
- Gelco Corp. v. Escambia Cnty., 649 So. 2d 333 (Fla. 1st DCA 1995)
- Owens v. State, 721 So. 2d 1210 (Fla. 1st DCA 1998)
- Royce Reed v. State, 768 So. 2d 1239 (Fla. 3d DCA 2000)