DAMIAN TUKES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Damian Tukes appealed the summary denial of his habeas corpus petition challenging his 2004 robbery with a firearm conviction on the ground that jury instructions failed to require proof of the firearm element beyond a reasonable doubt. The Florida Fourth District Court of Appeal affirmed the denial, finding the petition subject to dismissal on multiple procedural grounds.
The court affirmed the summary denial of Tukes' habeas petition on multiple procedural grounds: the petition was filed outside the two-year limitations period required by Rule 3.850(b), it constituted a successive filing in violation of Rule 3.850(f), and habeas challenges to convictions must be brought through Rule 3.800 or Rule 3.850 motions. On the merits, the court noted that Standard Jury Instruction 3.7 sufficiently informed the jury that all material allegations must be proven beyond a reasonable doubt.
[1] Challenges to a criminal conviction or sentence must be made through a Rule 3.800 or Rule 3.850 motion.
[2] A motion for post-conviction relief is facially untimely if filed more than seven years after the conviction and sentence became final, violating the two-year limitation…
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Join FLexlaw to unlock all legal intelligence“The habeas petition is subject to dismissal because the Florida Rules of Criminal Procedure require that all challenges to a criminal defendant's conviction or sentence shall be made through a Rule 3.800 or Rule 3.850 motion.”
Establishes the procedural requirement that conviction challenges must use the proper post-conviction motion procedures rather than habeas corpus petitions.
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Join FLexlaw to unlock all legal intelligenceTukes was convicted of robbery with a firearm in 2004. In 2011, more than seven years after his conviction became final, Tukes filed a habeas corpus p…
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This is an appeal from a summary denial of Damian Tukes’ petition for writ of habe-as corpus challenging his conviction and sentence for robbery with a firearm which became final in 2004. Tukes contends that the standard jury instructions given in his case failed to require his jury to find the firearm element of the charge beyond a reasonable doubt. We affirm.
We first note that the habeas petition is subject to dismissal because the Florida Rules of Criminal Procedure require that all challenges to a criminal defendant’s conviction or sentence shall be made through a Rule 3.800 or Rule 3.850 motion. Bradley v. Tucker, 95 So.3d 212 (Fla.2012) (Table) (citing Baker v. State, 878 So.2d 1236 (Fla.2004)); Childers v. State, 909 So.2d 462 (Fla. 4th DCA 2005). Even assuming Tukes filed his request for relief under the appropriate rule, if construed as a motion for post-conviction relief, the motion is facially untimely as it was filed more than seven years after his conviction and sentence became final in violation of the two-year limitation period prescribed by Rule 3.850(b). Parks v. State, 101 So.3d 1265, 1265 (Fla. 4th DCA 2012).
Finally, the motion was correctly described as successive by the trial court. The ground raised here was available to Tukes from the beginning of his post-conviction filings, which included a motion to correct illegal sentence, a petition for writ of habeas corpus alleging appellate counsel ineffectiveness, a petition for “all writs” jurisdiction in the Florida Supreme Court, a motion for post-conviction relief and a petition for belated appeal from summary denial of that motion. Thus, Tukes’ piecemeal presentation of his claims in various post-conviction proceedings constituted a violation of Rule 3.850(f), and thereby sub*1015jected the pending filing to dismissal on that basis as well. Jackman v. State, 88 So.3d 325, 327 (Fla. 4th DCA 2012).
In light of Tukes’ history of filing legally frivolous pro se pleadings re-litigating issues that were or could have been presented in his initial direct appeal in this case, we deem this appeal legally frivolous.1 Accordingly, by separate order, Tukes shall show cause why he should not be barred from filing any further pro se appeals in this court, challenging his conviction or sentence for robbery with a firearm in case number 01-19111 CF10A. See State v. Spencer, 751 So.2d 47, 49 (Fla.1999); § 944.279(1), Fla. Stat. (2012).
Affirmed.
WARNER and POLEN, JJ., concur.
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Grant v. State, 125 So. 3d 879 (Fla. 4th DCA 2013)…PER CURIAM. Affirmed. See Tukes v. State, 115 So. 3d 1014 (Fla. 4th DCA 2013) (citing Parks v. State, 101 So. 3d 1265, 1265 (Fla. 4th DCA 2012), and Jackman v. State, 88 So. 3d 325, 327 (Fla. 4th DCA 2012)); see also Medina v. State, 690 So. 2d 1241, 1249 (Fla.1997) (constitutionality of statute improper s…
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Dupree v. State, 137 So. 3d 444 (Fla. 4th DCA 2014)…court has repeatedly rejected the argument that the firearm interrogatory improperly allows the jury to find the existence of the weapon enhancement element on a burden of proof less than the “beyond a reasonable doubt” standard. See Tukes v. State, 115 So. 3d 1014, 1015 n. 1 (Fla. 4th DCA 2013); State v. Jacobs, 8 So. 3d 448, 449 (Fla. 4th DCA 2009); Huger v. State, 941 So. 2d 1182, 1185 (Fla. 4th DCA 2006). As we explained in Tukes, “Standard Jury Instruction 3.7 sufficed to inform the jury that a material…
Authorities Cited
- Baker v. State, 878 So. 2d 1236 (Fla. 2004)
- State v. Spencer, 751 So. 2d 47 (Fla. 1999)
- Jackman v. State, 88 So. 3d 325 (Fla. 4th DCA 2012)
- Ruger v. State, 941 So. 2d 1182 (Fla. 4th DCA 2006)
- Parks v. State, 101 So. 3d 1265 (Fla. 4th DCA 2012)
- Sterling Childers v. State, 909 So. 2d 462 (Fla. 4th DCA 2005)
- State v. Jacobs, 8 So. 3d 448 (Fla. 4th DCA 2009)