RUDOLPH MAXWELL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2011-09-28
No. 3D11-368
Before SUAREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
69 So. 3d 1122 Florida District Court of Appeal, Third District (2011) Positive Treatment
Cited by 6 cases
Topics
Habeas Corpus Relief Petition For Writ Of Habeas Corpus Habeas Corpus

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Opinion of the Court
PER CURIAM.

ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for rehearing filed by the State of Florida, vacate and withdraw the opinion issued in this case on July 20, 2011, and substitute the following opinion in its place:

We affirm the trial court’s order denying Rudolph Maxwell’s petition for habeas corpus. The Florida Supreme Court’s decision in State v. Montgomery, 39 So.3d 252 (Fla.2010) was rendered well after Maxwell’s convictions and sentences were final,1 and it is not retroactively applicable. See Witt v. State, 387 So.2d 922 (Fla.1980); see, e.g., Harricharan v. State, 59 So.3d 1162 (Fla. 5th DCA 2011); Rozzelle v. State, 29 So.3d 1141 (Fla. 1st DCA 2009). There is no legal basis for reversing the trial court’s decision to deny Maxwell’s petition for habeas relief. See Smith v. State, 598 So.2d 1063, 1066 (Fla.1992) (“[W]e hold that any decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final.... To benefit from the change in law, the defendant must have timely objected at trial if an objection was required to preserve the issue for appellate review.”)

Affirmed.

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Cited By

  • Ellis v. State, 245 So. 3d 873 (Fla. 3d DCA 2018)
    …PER CURIAM. Affirmed. See Jordan v. State, 190 So. 3d 78 (Fla. 3d DCA 2015) ; Maxwell v. State, 69 So. 3d 1122, 1123 (Fla. 3d DCA 2011) ("The Florida Supreme Court's decision in State v. Montgomery, 39 So. 3d 252 (Fla. 2010) was rendered well after Maxwell's convictions and sentences were final, and it is not retroactively applicable.").…
  • Marlin J. Ousley v. State, 118 So. 3d 267 (Fla. 3d DCA 2013)
    …SUAREZ, J. Affirmed. Mendoza v. State, 93 So. 3d 458 (Fla. 4th DCA 2012); Ross v. State, 82 So. 3d 975, 976 (Fla. 4th DCA 2011); Maxwell v. State, 69 So. 3d 1122 (Fla. 3d DCA 2011); Harricharan v. State, 59 So. 3d 1162, 1163 (Fla. 5th DCA 2011); Rozzelle [*268] v. State, 29 So. 3d 1141, 1142 (Fla. 1st DCA 2009).…
  • Louis v. State, 243 So. 3d 445 (Fla. 3d DCA 2017)
    …PER CURIAM. Affirmed. Maxwell v. State, 69 So. 3d 1122 (Fla. 3d DCA 2011) ; Wesley v. State, 126 So. 3d 389 (Fla. 4th DCA 2013) ; Ross v. State, 82 So. 3d 975 (Fla. 4th DCA 2011) ; Harricharan v. State, 59 So. 3d 1162 (Fla. 5th DCA 2011). See also Fla. R. Crim. P. 3.850(b)(2) (no motion filed under this…

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