DONALD CONIONILLI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Conionilli appeals denial of his rule 3.850 postconviction motion alleging ineffective assistance of counsel regarding sentencing consequences. The court affirms, holding that even if a post-Ey two-year window existed for misadvice about sentencing consequences, Conionilli would not qualify because he had notice of the problem when his fifteen-year minimum-mandatory term expired in 2004 and failed to timely file.
The court affirms the denial of postconviction relief. While not deciding whether a post-Ey window should exist, the court holds that even if such a window existed, Conionilli would not qualify because he had constructive notice of the problem on October 22, 2004 (when the fifteen-year minimum-mandatory term expired), making the pre-Ey two-year filing period deadline October 22, 2006—before his actual motion filing date in September 2008.
[1] A claim of ineffective assistance of counsel based on misadvice regarding sentencing consequences is subject to the two-year time limit for filing a motion for postconvic…
[2] A defendant who has actual notice that a sentencing outcome is not as advised cannot avail themselves of a post-decision window for filing a claim of misadvice if that no…
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Join FLexlaw to unlock all legal intelligence“Conionilli would not be able to avail himself of the window because, having allegedly believed from the pretrial stages that he would be released after fifteen years following an adverse result at trial, he had notice that such an outcome was not forthcoming when he found himself still in prison on October 22, 2004”
Establishes that constructive notice of the sentencing consequence problem arose when the fifteen-year minimum-mandatory term expired, starting the clock for any filing deadline.
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Join FLexlaw to unlock all legal intelligenceConionilli was convicted in 1990 and sentenced as a habitual violent felony offender to life in prison with a fifteen-year minimum-mandatory term for …
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Donald Conionilli appeals from an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. We affirm the denial, although we articulate a basis different from that relied on by the postconviction court because of an argument raised by Conionilli on appeal.
The record reflects that on April 5,1990, following a jury trial, Conionilli was sentenced as a habitual violent felony offender to life in prison with a fifteen-year minimum-mandatory term for burglary of a dwelling with assault or battery. This court affirmed the conviction and sentence, Conionilli v. State, 587 So.2d 1333 (Fla. 2d DCA 1991) (table decision), with the mandate issuing on October 21,1991.
In the instant proceeding, Conionilli filed a one-claim rule 3.850 motion alleging ineffective assistance of counsel. He claimed that during plea negotiations, counsel transmitted the State’s plea offer — thirty years’ imprisonment followed by forty years’ probation — and also informed him that if instead he went to trial and lost, he would be eligible for release after serving fifteen years. Because the latter alternative sounded more advantageous, Conionilli opted to proceed to trial. He argued in his motion that release after fifteen years sounded all the more real when the trial court used such phrasing as “he shall not be eligible for release for fifteen years” in describing the minimum-mandatory provision even as the court pronounced a sentence of “life in prison.”1 Conionilli alleged that he had not raised this issue earlier because it was only after serving fifteen years and making inquiries of the Parole Commission and the Department of Corrections (DOC) that he became aware that he was not eligible for early release due to his life sentence. Conionilli argued that the information from the authorities was a newly discovered fact such that his claim should not be time-barred.
The postconviction court ruled that because Conionilli filed his motion after the issuance of the supreme court’s opinion in Ey v. State, 982 So.2d 618 (Fla.2008), his claim was controlled by Ey and was therefore time-barred. On appeal, Conionilli argues that this court should establish a two-year post-Ey window analogous to that set by the supreme court in State v. Green, 944 So.2d 208 (Fla.2006), for claims of failure to be informed of the immigration consequences of a plea. Conionilli argues that if such a window had been available to him, his motion would have been timely, because Ey was issued on February 28, 2008, and his motion was served from DOC on September 25, 2008.
We conclude, however, that even if a two-year post-Ey window existed, Conion-illi would not be able to avail himself of it. Conionilli’s sentencing took place on April *38215, 1990, and 165 days of jail credit were awarded. Thus, the fifteen-year minimum-mandatory period began on October 22, 1989. The last day of the fifteen-year period was therefore October 21, 2004. However, the documentation attached to Conionilli’s motion indicates that the earliest inquiry he made of the correctional authorities was sometime around January 5, 2008,2 which is three years and seventy-six days following the end of the fifteen-year minimum-mandatory term. Conionil-li fails to explain why, if he believed from as early as the plea and sentencing stage that he would be released after fifteen years, he waited over three years after the end of that period to begin making inquiries of the correctional authorities.
This chronology is similar to one that caused the supreme court to define a limitation on Green’s two-year window. See Canseco v. State, 52 So.3d 575 (Fla.2010). Green concerned the trial court’s alleged failure to advise the defendant that his plea would render him subject to deportation as required by Florida Rule of Criminal Procedure 3.172(c)(8). 944 So.2d 208. Prior to Green, the two-year clock for filing such a claim began running “when the defendant has or should have knowledge of the threat of deportation based on the plea.” Peart v. State, 756 So.2d 42, 46 (Fla.2000). The court in Green receded from Peart, holding that the default two-year clock of rule 3.850(b) would apply: the claim “must be brought within two years of the date that the judgment and sentence ... become final.” Green, 944 So.2d at 218. The court also created a two-year window from the issuance of Green for “defendants whose cases are already final.” Id. at 219. However, in Canseco the court narrowed the availability of this window, ruling that those defendants who had actual notice of deportation proceedings (such as from federal immigration officials) more than two years before the filing of their rule 3.850 motions to withdraw plea could not avail themselves of the window; the window did not exist to revive such time-barred claims. 52 So.3d at 576.
The change in the law on the time available for filing motions about sentencing consequences is analogous to that in Green and Peart for misadvice about immigration consequences. Under pr e-Ey case law, the two-year clock for filing a claim of misadvice about sentencing consequences began running “when the authorities provided information to the defendant that belied the earlier advice of counsel,” Singleton v. State, 981 So.2d 1259, 1261 (Fla. 2d DCA 2008). Ey, however, held that the movant must raise the claim within two years from when his conviction became final pursuant to rule 3.850(b).3 982 So.2d at 625. However, if such a claim is raised prior to the date of the decision in Ey, the pre-Ey timing rule applies to the movant’s benefit. E.g., Flint v. State, 13 So.3d 70, 72 (Fla. 2d DCA 2009); Singleton, 981 So.2d 1259. Unlike Green, however, Ey did not create an extra two-year window. 982 So.2d 618. Conionilli argues that this court should do so.
*383However, even if we assume that a two-year post-Ey window should exist for claims alleging misadviee about sentencing consequences, we conclude that Conionilli would not be able to avail himself of the window because, having allegedly believed from the pretrial stages that he would be released after fifteen years following an adverse result at trial, he had notice that such an outcome was not forthcoming when he found himself still in prison on October 22, 2004, the day after the minimum-mandatory term expired. At the latest, this is the date that began the two-year motion-filing period under pre-Ey case law. That period ended October 22, 2006, after which time motions relating to counsel’s alleged misadviee about sentencing consequences were time-barred. Because Conionilli failed to meet this deadline for filing his rule 3.850 motion, his claim would not have been timely even if a two-year post-Ey window existed. Cf. Canseco, 52 So.3d 575. The order on appeal is therefore affirmed.
Affirmed.
VILLANTI and LaROSE, JJ., Concur.
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Jackson v. State, 96 So. 3d 980 (Fla. 4th DCA 2012)…y by virtue of gain-time granted or forfeited as described in this section.” (emphasis added). Simply stated, a defendant serving a life sentence does not qualify for conditional release, that is, early release due to gain time. Conionilli v. State, 58 So. 3d 380, 381 n. 1 (Fla. 2d DCA 2011); see also Wemett v. State, 567 So. 2d 882, 884 (Fla.1990) (stating “nor does guidelines sentencing allow Wemett to benefit from gain-time while serving a life sentence”). Jackson’s claim that his inability to obtain ear…
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State v. Manning, 121 So. 3d 1083 (Fla. 4th DCA 2013)…n his motion are not persuasive. Florida appellate courts have continuously enforced the two-year Rule 3.850 statute of limitations against claims of erroneous court instructions and ineffective assistance of counsel. See, e.g., Conionilli v. State, 58 So. 3d 380 (Fla. 2d DCA 2011) (holding that appellant’s claim based on misadvice of counsel was time barred under 3.850); Sampedro v. State, 10 So. 3d 1131 (Fla. 3d DCA 2009) (time limitations of 3.850 apply to claims that trial court failed to give proper ins…
Authorities Cited
- State v. Owran Green, 944 So. 2d 208 (Fla. 2006)
- Roan Peart v. State, 756 So. 2d 42 (Fla. 2000)
- Beaty v. State, 701 So. 2d 856 (Fla. 1997)
- EY v. State, 982 So. 2d 618 (Fla. 2008)
- Tal-Mason v. State, 700 So. 2d 453 (Fla. 4th DCA 1997)
- Singleton v. State, 981 So. 2d 1259 (Fla. 2d DCA 2008)
- Flint v. State, 13 So. 3d 70 (Fla. 2d DCA 2009)
- Canseco v. State, 52 So. 3d 575 (Fla. 2010)