LUIS. A. PEREZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed summary denial of postconviction relief where defendant claimed ineffective assistance for failing to file speedy trial notice, finding the claim was procedurally barred as successive and meritless since counsel actually did file the motion.
A second rule 3.850 motion raising a claim that could have been raised in a first postconviction motion is properly denied as successive, and the underlying ineffective assistance claim fails on the merits where counsel did file a speedy trial motion and trial occurred within the recapture period.
[1] A successive rule 3.850 motion raising a claim that could have been raised in a prior postconviction motion is properly denied where the prior motion was decided on the m…
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Join FLexlaw to unlock all legal intelligenceLuis Perez appealed a trial court's summary denial of his second motion for postconviction relief under rule 3.850, claiming his trial counsel provide…
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Luis A. Perez appeals the trial court’s order summarily denying his motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We affirm.
Perez claims that his trial counsel provided ineffective assistance of counsel for failing to file a notice of expiration of speedy trial and requiring the State to try him within the “recapture period.” We conclude that the trial court properly denied Perez’s motion both on procedural grounds and on the merits. On June 10, 2009, Perez filed his first motion for post-conviction relief, which was denied by the trial court on October 30, 2009, and affirmed on appeal. Perez v. State, 23 So.3d 123 (Fla. 3d DCA 2009). Because the instant claim is one which could have been raised in Perez’s first motion for postcon-viction relief, and his previous motion was decided on the merits, his second rule 3.850 motion was correctly denied as successive. Ragan v. State, 643 So.2d 1175 (Fla. 3d DCA 1994). We also find that the claim was properly denied on the merits. The record reflects that Perez’s trial counsel did file a motion to dismiss the charges on speedy trial grounds on May 1, 2007, the trial court properly heard the motion on May 4, 2007, and Perez was tried on May 10, 2007, within the speedy trial recapture period.
Affirmed.
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Flores v. State, 40 So. 3d 881 (Fla. 3d DCA 2010)
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Waldo Jeune v. State, 156 So. 3d 590 (Fla. 3d DCA 2015)
Authorities Cited
- Ragan v. State, 643 So. 2d 1175 (Fla. 3d DCA 1994)