RECARDO CLAYTON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court correctly denied the motion for postconviction relief because the claims of ineffective assistance of counsel were refuted by the record.
Clayton appealed the denial of his motion for postconviction relief, claiming his trial counsel was ineffective for failing to file certain post-trial…
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ROTHENBERG, J.
Recardo Clayton (“Clayton”) appeals the trial court’s order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.
Clayton claims that his trial counsel provided ineffective assistance of counsel by failing to file a post-trial motion for new trial or make an ore tenus motion to reduce his robbery conviction to theft. The defendant, who was charged with robbery with a firearm, but found guilty of robbery, argues that there was no evidence presented regarding an essential element of the crime-that force, violence, or fear was used in the course of the taking. Clayton additionally argues that his trial counsel’s failure to raise these issues at the trial level constituted a waiver of the issue on appeal.
A review of the record on direct appeal, however, conclusively refutes these claims. Clayton’s trial counsel did file a Motion for Judgment Notwithstanding the Verdict on July 13, 2006, specifically raising this argument. The briefs filed on direct appeal reflect that Clayton’s appellate counsel also raised this issue, and that the Attorney General’s Office did not claim that the issue had not been preserved below and addressed the merits of this claim. Additionally, the opinion issued on direct appeal reflects that this Court decided the appeal on the merits and rejected defense counsel’s argument that Clayton was improperly convicted of robbery where the jury found no firearm was involved.
Affirmed.
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Recardo Clayton v. State, 34 So. 3d 214 (Fla. 3d DCA 2010)…Fla. 3d DCA 2008). Clayton then filed a post-conviction relief motion, which was considered on May 20, 2008, and denied without an evidentiary hearing. Clayton appealed and on November 5, 2008, we issued our opinion, affirming. See Clayton v. State, 994 So. 2d 1179 (Fla. 3d DCA 2008). Clayton then filed a second 3.850 motion, which was summarily denied. We conclude that three of the four claims that Clayton raised were successive and duplicative. Accordingly, the trial court was correct in summarily denying…
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Recardo Clayton v. State, 176 So. 3d 303 (Fla. 3d DCA 2015)…ward to the Florida Department of Corrections for its consideration of disciplinary action, including forfeiture of gain time. See § 944.279(1), Fla. Stat. (2014). The petition is dismissed and an order to show cause is issued. . Clayton v. State, 994 So. 2d 1179 (Fla. 3d DCA 2008) (Mem); Clayton v. State, 34 So. 3d 214 (Fla. 3d DCA 2010) (Mem); Clayton v. State, No. 3D13-960 (Fla. 3d DCA April 22, [*304] 2013) (Table); Clayton v. State, 116 So. 3d 1270 (Fla. 3d DCA 2013) (Table); Clayton v. State, 121 So. 3…