ANTHONY ZITO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the circuit court properly denied the motion for production of records and the motion to extend time to file a postconviction motion.
[1] A motion to extend time to file a postconviction motion is properly denied when the statutory period has expired and the motion contains no allegations that would extend…
[2] A claim of ineffective assistance of postconviction counsel is not a cognizable claim.
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Join FLexlaw to unlock all legal intelligenceAnthony Zito sought review of a circuit court order denying his motion for production of records and his motion to extend time to file a postconvictio…
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ALTENBERND, Judge.
Anthony Zito seeks review of a circuit court order denying his “motion for production” of certain records related to his criminal judgments and sentences in circuit court case numbers 02-CF-14779 and 02-CF-14925 and denying his motion to extend time to file a postconviction motion related to these same judgments and sentences.
We affirm the order. The motion to extend time to file a postconviction motion was properly denied. The two-year period normally permitted for filing a postconviction motion had expired as to these two circuit court case numbers well before this motion was filed, and the motion contained no allegation that might extend the period. See Fla. R.Crim. P. 3.050; State v. Boyd, 846 So. 2d 458, 459-60 (Fla.2003). Further, any post-conviction motion alleging ineffective assistance of trial counsel in these circuit court cases would be successive to earlier motions. To the extent Mr. Zito is seeking to allege ineffective assistance of postconviction counsel, no such claim exists. See Kokal v. State, 901 So. 2d 766, 777 (Fla.2005).
The circuit court also properly denied Mr. Zito’s motion for production of documents. Mr. Zito is not entitled to records in the possession of the state attorney or the clerk of the circuit court free of charge. See Carr v. State, 495 So. 2d 282, 282 (Fla. 2d DCA 1986); Woodfaulk v. State, 935 So. 2d 1225, 1226 (Fla. 5th DCA 2006).
Although Mr. Zito may be entitled to limited records from counsel appointed to represent him before the circuit court without having to pay for the costs of providing those records, see, e.g., Potts v. State, 869 So. 2d 1223, 1224-25 (Fla. 2d DCA 2004), he must first request those limited documents from appointed counsel and then seek mandamus with the circuit court if the records are not properly provided. Id. Our affirmance of the order now on appeal is without prejudice to Mr. Zito seeking appropriate records from his appointed counsel in this manner if he has not already done so.
Affirmed.
CASANUEVA and WALLACE, JJ., Concur.
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Cited By
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Beloni Petit-Frere v. State, 108 So. 3d 681 (Fla. 2d DCA 2013)…ule 3.850. This appeal followed. The postconviction court correctly ruled that claims of ineffective assistance of postconviction counsel are not cognizable under rule 3.850. See, e.g., Kokal v. State, 901 So. 2d 766, 777 (Fla.2005); Zito v. State, 990 So. 2d 1257, 1257 (Fla. 2d DCA 2008). This principle appears not to have changed even in the wake of a recent United States Supreme Court opinion that appears to have opened up the possibility of ineffectiveness-of-postconviction-counsel claims in limited circu…
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Anthony v. State, 277 So. 3d 223 (Fla. 2d DCA 2019)…has no adequate remedy at law. Davis v. State, 861 So. 2d 1214, 1216 (Fla. 2d DCA 2003). Before seeking a writ of mandamus to compel a public defender to produce records, a defendant must first request the records and be denied. Zito v. State, 990 So. 2d 1257, 1257 (Fla. 2d DCA 2008). A defendant, when represented by a public defender, is entitled to free copies of his or her own records or property, including copies of all trial and hearing - 4 - transcripts, motions, State discovery presented to…
Authorities Cited
- Kokal v. State, 901 So. 2d 766 (Fla. 2005)
- State v. Mahlard K. Boyd, 846 So. 2d 458 (Fla. 2003)
- Carr v. State, 495 So. 2d 282 (Fla. 2d DCA 1986)
- Potts v. State, 869 So. 2d 1223 (Fla. 2d DCA 2004)
- Woodfaulk v. State, 935 So. 2d 1225 (Fla. 5th DCA 2006)