DANIEL R. LONERGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Daniel Lonergan appeals the denial of his post-conviction relief motion as untimely. The trial court properly rejected his motion under Florida Rule of Criminal Procedure 3.850's two-year limitations period because it was filed over 23 years after his 1984 guilty plea became final, and the controlling Supreme Court precedent in Ey v. State did not provide an exception to the limitations period for his circumstances.
The motion was properly denied as untimely. Under the controlling precedent of Ey v. State, the two-year limitations period for filing post-conviction relief based on erroneous counsel advice regarding a conviction's effect on sentencing in another case begins when the conviction becomes final, not when the defendant discovers the enhancement. Lonergan's motion filed in 2008 was more than two years after his 1984 conviction became final and did not qualify for the exception applied in Ey.
[1] A motion for post-conviction relief alleging an involuntary plea due to erroneous advice of counsel regarding the effect of the plea on a prior sentence is untimely if no…
[2] A claim that defense counsel erroneously advised a defendant about the effect of a plea on a sentence imposed in another case for a crime committed prior to the entry of…
Previewing 2 of 5 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“a claim that counsel erroneously advised a defendant about the effect of his plea on a sentence imposed in another case for a crime committed prior to the entry of his plea was legally sufficient, but was untimely if not filed within two years after the conviction based on the plea became final”
Establishes the controlling legal standard from Ey v. State for when the limitations period begins running for erroneous advice claims
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLonergan pleaded guilty to attempted escape on May 14, 1984, and was sentenced to one year and one day in prison. He did not file a direct appeal but …
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Daniel Lonergan appeals the trial court’s denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 as untimely. We affirm.
Lonergan pleaded guilty to attempted escape on May 14, 1984, and was adjudicated guilty and sentenced to one year and one day in prison, consecutive to any sentence he was then serving. He did not file a direct appeal. In 1997 and 1998, he filed two motions to correct illegal sentence, both of which were denied. He also filed a motion for post-conviction relief in May, 2001, on grounds not related to the issue here.
On May 30, 2007, the Florida Parole Commission aggravated his parole release date in a 1981 murder case by twenty-four months, based on the attempted escape conviction. On August 11, 2008, Lonergan filed another motion for post-conviction relief, the denial of which is the subject of this appeal. In this motion, Lonergan alleged that his plea was involuntary as it was the result of erroneous advice of counsel that his conviction for escape could not affect his subsequent parole in the murder case for which he already had been convicted and sentenced. He also alleged ineffective assistance of defense counsel for providing this erroneous advice.
The trial court summarily denied this motion as untimely under rule 3.850(b)’s two-year limitations period, and as successive to his previous motion filed in 2001. We affirm. By the time Lonergan filed his motion for post-conviction relief on August 11, 2008, the Supreme Court of Florida’s decision in Ey v. State, 982 So.2d 618 (Fla.2008), was controlling authority. In that case, the Supreme Court held that a claim that counsel erroneously advised a defendant about the effect of his plea on a sentence imposed in another case for a crime committed prior to the entry of his plea was legally sufficient, but was untimely if not filed within two years after the conviction based on the plea became final. Id. at 625. While the motion in that case was filed beyond the limitations period, the Supreme Court nonetheless deemed the motion timely there because, at the time it was filed, district courts had applied Peart v. State, 756 So.2d 42 (Fla.2000), to similar claims and held that the limitations period commenced when the defendant discovered the enhancement, not the date the conviction became final. Id. However the Supreme Court overruled Peart in State v. Green, 944 So.2d 208 (Fla.2006), while Ey’s petition was pending. In those circumstances, the Supreme Court allowed it to be considered as timely filed.
Here, that is not the case. Lonergan’s motion was filed after Ey, and thus, the clock started to tick when his conviction and sentence became final in 1984. He could have learned within two years of that time that the Florida Parole Commission could exercise its discretion to use the attempted escape conviction to aggravate his parole release date in the murder case, notwithstanding any promises by his defense counsel to the contrary. See Gusow v. State, 6 So.3d 699, 704-05 (Fla. 4th DCA 2009). Accordingly, the trial court properly denied his post-conviction motion filed *536more than two years after his conviction and sentence became final.
Affirmed.
STEVENSON, MAY and DAMOORGIAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dinkins v. State, 125 So. 3d 968 (Fla. 4th DCA 2013)…lenging the plea in the Palm Beach County case began to run on the date that conviction became final, not on the date on which the defendant discovered his attorney’s alleged misadvice. Ey v. State, 982 So. 2d 618, 625 (Fla.2008); Lonergan v. State, 13 So. 3d 534, 535 (Fla. 4th DCA 2009); Gusow v. State, 6 So. 3d 699, 704-05 (Fla. 4th DCA 2009). The defendant, with due diligence, could have discovered within [*970] the two-year time limit that his gain time could be forfeited under section 944.28(1) as a res…
Authorities Cited
- State v. Owran Green, 944 So. 2d 208 (Fla. 2006)
- Roan Peart v. State, 756 So. 2d 42 (Fla. 2000)
- EY v. State, 982 So. 2d 618 (Fla. 2008)
- Gusow v. State, 6 So. 3d 699 (Fla. 4th DCA 2009)