WARREN D. NICOT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Warren Nicot appealed the trial court's summary denial of his amended post-conviction relief motion on grounds that it was successive and time-barred. The appellate court reversed, finding the motion was timely filed and not entirely successive, as the trial court failed to properly address the ineffective assistance of counsel claim regarding failure to call witnesses.
The amended motion was neither time-barred nor entirely successive. The motion was timely filed within two years of the mandate from the direct appeal. The trial court erred in finding the motion successive as to all claims, particularly the ineffective assistance of counsel claim regarding failure to call witnesses, which was not adequately addressed on the merits.
[1] A post-conviction relief motion is not time-barred if filed within two years of the mandate issued on direct appeal.
[2] A post-conviction relief motion is not successive if a prior motion did not address the merits of the specific claim raised.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Because the amended motion was neither, we reverse.”
The court's holding that the motion was neither time-barred nor impermissibly successive.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceNicot was convicted of burglary of a conveyance with battery and strong-arm robbery, and this court affirmed his conviction. In 2005, he filed a motio…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Postconviction Relief cases and more on FLexlaw
The defendant appeals an order summarily denying his 2007 amended motion *700for post-conviction relief as impermissibly successive and time-barred. Because the amended motion was neither, we reverse.
The defendant was convicted of burglary of a conveyance with a battery and strong arm robbery. This court affirmed his conviction. In 2005, the defendant filed a motion for post-conviction relief. The trial court summarily denied relying upon the State’s response, which had argued that the motion was legally insufficient and could also be denied on its merits.
In 2007, the defendant filed the current amended motion for post-conviction relief raising the same issues. The court did not order a response from the State, but granted the defendant leave to amend and denied the amended motion. In doing so, the trial court stated that it had “most decidedly addressed the merits” of the defendant’s 2005 motion in its prior order. The trial court also found the 2007 amended motion to be time barred.
Unfortunately, the trial court erred in its conclusion that the 2007 amended motion was untimely. The direct appeal of case number 02-18813, to which the amended motion was directed, ended when this court affirmed the judgment, denied rehearing, and issued its mandate on August 5, 2005. See Nicot v. State, 905 So.2d 897 (Fla. 4th DCA 2005). The defendant filed his amended motion on July 16, 2007, within the requisite two years. The trial court mistakenly relied on the finality of a prior case (01-19888) belonging to the defendant to find the amended motion untimely.
The trial court also erred in finding the amended motion successive as to all claims. With regard to the defendant’s claim that defense counsel was ineffective in failing to call witnesses, the State had responded that the claim was legally insufficient because the defendant had failed to name the witnesses, state the substance of their testimony, indicate their availability, and why this failure constituted ineffective assistance of counsel. Without this information, it would have been impossible for the court to have ruled on the merits of this claim.
We therefore reverse and remand the case for attachment of record excerpts refuting the defendant’s claim concerning the failure to call witnesses or an evidentiary hearing. The other claims are either successive, were raised and disposed of on direct appeal, or were refuted by the State’s response.
Reversed and Remanded.
POLEN, HAZOURI and MAY, JJ., concur.