MERLAN DAVIS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Davis petitioned for a writ of mandamus requesting the trial court strike his postconviction motion with leave to amend, relying on Spera v. State. The Florida District Court of Appeal, Second District, held that Spera does not apply retroactively and denied the petition.
The court held that Spera does not apply retroactively because it is a refinement of decisional law rather than a fundamental and constitutional law change warranting retroactive application. Additionally, Davis's appeal had become final when the mandate issued on June 12, 2007, and the court lacked power to recall the mandate.
[1] A judicial decision that refines existing decisional law, rather than establishing a fundamental and constitutional law change, is not applied retroactively.
[2] A motion for postconviction relief is not subject to retroactive application of a new rule of law if the motion became final before the new rule was announced.
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Join FLexlaw to unlock all legal intelligence“We hold that Spera does not apply retroactively.”
The court's direct holding on the retroactive application of Spera to Davis's case.
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Join FLexlaw to unlock all legal intelligenceDavis filed a rule 3.850 postconviction motion on December 8, 2005, raising four claims of ineffective assistance of counsel and a Brady violation. Th…
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LaROSE, Judge.
In his petition for writ of mandamus, which this court denied on January 10, 2008, with opinion to follow, Merlan Davis requests this court to order the trial court to strike his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 with leave to amend. He relies on Spera v. State, 971 So. 2d 754 (Fla.2007). We hold that Spera does not apply retroactively.
Mr. Davis filed his rule 3.850 motion on December 8, 2005, raising four claims. In claim one, Mr. Davis alleged that trial counsel was ineffective for misinforming him of the maximum sentence and for telling him that he could not be charged with a second count. In claim two, Mr. Davis alleged ineffective assistance of trial counsel for failing to file a motion to suppress evidence. In claim three, Mr. Davis alleged ineffective assistance of trial counsel for failing to request an independent court-appointed psychiatrist. In his fourth claim, Mr. Davis alleged a Brady1 violation when the State Attorney denied him access to files for inspection. The postconviction court dismissed the motion, ruling that it was facially insufficient and untimely. Mr. Davis filed a motion for rehearing which the postconviction court denied, ruling that the rule 3.850 motion was also successive. On appeal, we held that Mr. Davis’ motion was timely and not successive. Davis v. State, 953 So. 2d 612, 613-14 (Fla. 2d DCA 2007). We also held that claim one was facially sufficient and reversed for the postconviction court to attach portions of the record refuting that claim or to hold an evidentiary hearing. Id. at 614. However, we held that claims two through four were facially insufficient. Id. We denied a motion for rehearing.
In his petition, Mr. Davis asks that we require the postconviction court to strike his rule 3.850 motion on remand with leave for him to amend. Relying on Spera, 971 So. 2d 754, Mr. Davis argues that he is entitled to at least one opportunity to amend his rule 3.850 motion. We reject Mr. Davis’ contention because we view Spera as a refinement of decisional law; it is not a “fundamental and constitutional law change” that should apply retroactively. See Witt v. State, 387 So. 2d 922, 926-29 (Fla.1980).2
Petition previously denied.
GASANUEVA and STRINGER, JJ„ Concur. . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
. We also note that Mr. Davis’ appeal became final when our mandate issued on June 12, 2007. “An appellate court’s power to recall its mandate is limited to the term during which it was issued.” State Farm Mut. Auto. Ins. Co. v. Judges of Dist. Court of Appeal, 405 So. 2d 980, 982-83 (Fla.1981). This court’s term ended in July 2007 and, again, in January 2008. § 35.10, Fla. Stat. (2007). Even if we were inclined to do so, we cannot recall the mandate.
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Marcial Rodriquez v. State, 993 So. 2d 152 (Fla. 1st DCA 2008)…so, Spera pertains to cases such as Appellant’s in which the appeal was pending when Spera was issued. See Watson v. State, 975 So. 2d 572, 573 (Fla. 1st DCA 2008); [*154] Pierre v. State, 973 So. 2d 547 (Fla. 5th DCA 2008). But see Davis v. State, 993 So. 2d 1045, 1046, 2008 WL 508654 (Fla. 2d DCA Feb. 27, 2008) (rejecting proposition that Spera should be applied retroactively); Landeverde v. State, 989 So. 2d 654 (Fla. 4th DCA 2008) (same reasoning). The Spera issue was preserved only as to Ground Eight in…
Authorities Cited
- Brady v. Maryland, 373 U.S. 83 (U.S. 1963)
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Witt v. State, 387 So. 2d 922 (Fla. 1980)
- State Farm Mut. Auto. Ins. Co. v. Judges OF the Dist. Court OF Appeal, 405 So. 2d 980 (Fla. 1981)
- Merlan Davis v. State, 953 So. 2d 612 (Fla. 2d DCA 2007)