LEONARD LUCKEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant's appeal of denial of postconviction relief motion was affirmed; claims of ineffective postconviction counsel must be raised via habeas corpus petition in trial court, not on direct appeal.
Claims that appointed postconviction counsel was ineffective in failing to timely file a Rule 3.850 motion must be raised by habeas corpus petition in the trial court, not by appellate review of the postconviction motion denial.
[1] A defendant challenging the timeliness of postconviction counsel's filing of a Rule 3.850 motion must pursue a habeas corpus petition in the trial court rather than raise…
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Join FLexlaw to unlock all legal intelligenceLeonard Luckey appealed a trial court's order denying his motion filed under Florida Rule of Criminal Procedure 3.850, arguing his appointed postconvi…
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Leonard Luckey (defendant) appeals the trial court’s order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm and comment only on one of the defendant’s arguments.
The defendant argues that his appointed postconviction counsel was ineffective in failing to file an amended claim within the time period allowed by the trial court under Spera v. State, 971 So.2d 754 (Fla.2007). The proper procedural vehicle to raise such an argument is not an appellate claim of ineffective assistance of postcon-viction counsel, but instead, a petition for writ of habeas corpus filed in the trial court in which the defendant was convicted. See Steele v. Kehoe, 747 So.2d 931 (Fla.1999) (holding that where postconviction counsel agrees to file a rule 3.850 motion, defendant has a due process right *424that counsel do so timely; holding that proper remedy for counsel’s failure to do so is a habeas corpus petition in the trial court); Steele v. Kehoe, 724 So.2d 1192 (Fla. 5th DCA 1998) (stating that this right that counsel timely file applies in context of either retained or appointed counsel); Collins v. State, 859 So.2d 1244, 1245 (Fla. 5th DCA 2003) (holding that habeas corpus petition relating to validity of conviction must be filed in circuit court where petitioner was convicted).
AFFIRMED.
SAWAYA and JACOBUS, JJ., concur.
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Lampkin v. State, 200 So. 3d 117 (Fla. 5th DCA 2016)…PER CURIAM. AFFIRMED. See Luckey v. State, 84 So. 3d 423, 423 (Fla. 5th DCA 2012). PALMER, COHEN, and EDWARDS, JJ., concur.…
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999)
- Collins v. State, 859 So. 2d 1244 (Fla. 5th DCA 2003)
- Dixon v. Singletary, 724 So. 2d 1192 (Fla. 3d DCA 1998)