SANTIAGO MENDOZA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of postconviction relief, holding that State v. Montgomery does not apply retroactively to final convictions and does not apply substantively to first-degree murder convictions.
State v. Montgomery does not apply retroactively to convictions that were final before the supreme court's decision, and does not apply substantively to first-degree murder convictions.
[1] State v. …
[2] State v. …
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Join FLexlaw to unlock all legal intelligenceMendoza was convicted of first-degree murder and sought postconviction relief arguing that State v. Montgomery, which addressed jury instructions on m…
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We affirm the circuit court’s denial of the defendant’s motion for postconviction relief primarily seeking to apply retroactively State v. Montgomery, 39 So.3d 252, 257-58 (Fla.2010) (standard jury instruction on manslaughter, which required the jury to find that the defendant intended to kill the victim, constituted fundamental error). We already have held that Montgomery “does not apply retroactively to convictions which were final before our supreme court issued that decision.” Ross v. State, 82 So.3d 975, 976 (Fla. 4th DCA 2011). Our sister courts have held likewise. Harricharan v. State, 59 So.3d 1162, 1163 (Fla. 5th DCA 2011), rev. denied, 92 So.3d 213 (Fla.2012) (table); Rozzelle v. State, 29 So.3d 1141, 1142 (Fla. 1st DCA 2009), rev. denied, 92 So.3d 214 (Fla.2012) (table). Further, Montgomery does not apply substantively here because the defendant was convicted of first-degree murder, an offense two steps removed from the lesser-included offense of voluntary manslaughter. Montgomery, 39 So.3d at 259; Joseph v. State, 42 So.3d 323, 324-25 (Fla. 4th DCA 2010).
The circuit court did not address appellant’s second claim which alleged ineffective assistance of counsel. This claim is procedurally barred as untimely and successive. Fla.Crim. P. 3.850(b); Fla. R.Crim. P. 3.850(f).
Affirmed.
POLEN, DAMOORGIAN and GERBER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Utile v. State, 235 So. 3d 1045 (Fla. 5th DCA 2018)…reme Court until 2010. In Harricharan v. State, 59 So. 3d 1162, 1163 (Fla. 5th DCA 2011), rev. denied, 92 So. 3d 213 (Fla. 2012), we held that Montgomery does not apply to cases that were final before Montgomery was decided. Accord Mendoza v. State, 93 So. 3d 458 (Fla. 4th DCA 2012); Rozzelle v. State, 29 So. 3d 1141 (Fla. 1st DCA 2009). Utile's convictions were final in 2008 when this court issued its mandate on his direct appeal and he pursued no further relief with the Florida Supreme Court. See Anton v.…
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Marcsene Utile v. State (Fla. 5th DCA 2018)…reme Court until 2010. In Harricharan v. State, 59 So. 3d 1162, 1163 (Fla. 5th DCA 2011), rev. denied, 92 So. 3d 213 (Fla. 2012), we held that Montgomery does not apply to cases that were final before Montgomery was decided. Accord Mendoza v. State, 93 So. 3d 458 (Fla. 4th DCA 2012); Rozzelle v. State, 29 So. 3d 1141 (Fla. 1st DCA 2009). Utile's convictions were final in 2008 when this court issued its mandate on his direct appeal and he pursued no further relief with the Florida Supreme Court. See Anton v.…
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Scottie Lee White v. State, 161 So. 3d 526 (Fla. 2d DCA 2014)…3d 252, 257-58 (Fla.2010). We write only to observe that the postcon-viction court properly rejected this contention on the ground that the Montgomery case does not apply retroactively to cases that were final before it issued. See Mendoza v. State, 93 So. 3d 458, 458 (Fla. 4th DCA 2012); Harricharan v. State, 59 So. 3d 1162, 1163 (Fla. 5th DCA 2011). Affirmed. SILBERMAN and KELLY, JJ., Concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Rozzelle v. State, 29 So. 3d 1141 (Fla. 1st DCA 2009)
- Harricharan v. State, 59 So. 3d 1162 (Fla. 5th DCA 2011)
- Ross v. State, 82 So. 3d 975 (Fla. 4th DCA 2011)
- Sherwood Joseph v. State, 42 So. 3d 323 (Fla. 4th DCA 2010)