ARTHUR W. FOLEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Arthur Foley appeals the denial of his motion for newly discovered evidence, claiming his trial counsel provided ineffective assistance by failing to use a police report to impeach the victim at trial. The court affirms, finding the ineffective assistance claim both procedurally barred and untimely, and determining that the police report was not newly discovered evidence.
The court held that Foley's ineffective assistance claim is both untimely—filed beyond the two-year limit under rule 8.850(b)—and procedurally barred because Foley could have raised it in his prior postconviction motions. Additionally, the police report does not qualify as newly discovered evidence because it was provided to the defense on November 29, 1999.
[1] A claim of ineffective assistance of trial counsel is untimely if filed beyond the two-year time limit set forth in rule 3.850(b), Florida Rules of Criminal Procedure.
[2] A claim of ineffective assistance of trial counsel is procedurally barred if it could have been raised in prior motions for postconviction relief.
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Join FLexlaw to unlock all legal intelligence“To the extent that Foley's latest submission alleges ineffective assistance of trial counsel, we conclude that the claim is untimely as it was filed beyond the two-year time limit set forth in rule 8.850(b). It is also proeedurally barred as Foley could have raised this claim in his prior motions for postconviction relief.”
Establishes the dual grounds for rejection of the ineffective assistance claim: timeliness and procedural bar.
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Join FLexlaw to unlock all legal intelligenceFoley was convicted on February 23, 2001, and sentenced on March 22, 2001. His judgment and sentence became final on appeal after affirmation and rese…
The full statement of facts, procedural history, and disposition for this case are member content.
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ROTHENBERG, Judge.
The defendant, Arthur W. Foley (“Foley”), appeals the trial court’s order denying his “Motion for Newly Discovered Evidence.” We affirm.
Foley contends that his trial counsel provided ineffective assistance by failing to use a police report to impeach the victim at trial. He additionally contends that the police report in question qualifies as “newly discovered evidence.”
Foley’s claim of ineffective assistance of trial counsel, however, is both proeedurally barred and untimely. Foley was convicted on February 23, 2001, and sentenced on March 22, 2001. This Court affirmed the judgment but remanded the case for resentencing on January 16, 2002. Foley v. State, 804 So. 2d 556 (Fla. 3d DCA 2002). On March 22, 2002, Foley was re-sentenced, and that sentence was affirmed by this Court on October 9, 2002. Foley v. State, 827 So. 2d 376 (Fla. 3d DCA 2002).
Since Foley’s judgment and sentence became final on appeal, he has filed at least three separate motions for postconviction relief alleging ineffective assistance of trial counsel pursuant to rule 3.850, Florida Rules of Criminal Procedure. These motions were denied by the trial court, and affirmed by this Court. Foley v. State, 973 So. 2d 454 (Fla. 3d DCA 2007); Foley v. State, 965 So. 2d 138 (Fla. 3d DCA 2007); Foley v. State, 858 So. 2d 1059 (Fla. 3d DCA 2003).1
To the extent that Foley’s latest submission alleges ineffective assistance of trial counsel, we conclude that the claim is untimely as it was filed beyond the two-year time limit set forth in rule 8.850(b). It is also proeedurally barred as Foley could have raised this claim in his prior motions for postconviction relief. See Moore v. State, 820 So. 2d 199 (Fla.2002); Franklin v. State, 923 So. 2d 1199 (Fla. 3d DCA 2006); Scrambling v. State, 919 So. 2d 671 (Fla. 5th DCA 2006).
To the extent that Foley alleges that the police report authored by Officer Villacian represents newly discovered evidence, we find no merit. The State’s initial discovery response, which was made a part of the record on appeal, reflects that on November 29, 1999, the report was provided to the defense.
Affirmed.
. This Court has also disposed of other matters adversely to Foley. Foley v. State, 937 So. 2d 235 (Fla. 3d DCA 2006) (affirming denial of rule 3.800 motion); Foley v. State, 920 So. 2d 8 (Fla. 3d DCA 2006) (dismissing petition alleging ineffective assistance of counsel); Foley v. State, 917 So. 2d 877 (Fla. 3d DCA 2005) (affirming denial of rule 3.800 motion).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Moore v. State, 820 So. 2d 199 (Fla. 2002)
- Franklin v. State, 923 So. 2d 1199 (Fla. 3d DCA 2006)
- Roque v. State, 919 So. 2d 671 (Fla. 5th DCA 2006)
- Foley v. State, 937 So. 2d 235 (Fla. 3d DCA 2006)
- Foley v. State, 804 So. 2d 556 (Fla. 3d DCA 2002)
- Bader v. State, 827 So. 2d 376 (Fla. 3d DCA 2002)