SALVADOR MENDOZA, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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Salvador Mendoza petitioned for a writ of habeas corpus alleging ineffective assistance of appellate counsel, but the Florida District Court of Appeal dismissed the petition as procedurally barred because it was filed more than four years after his judgment and sentence became final on direct review, exceeding the statutory deadline under Florida Rule of Appellate Procedure 9.141(d)(5).
The petition was procedurally barred and dismissed because it was filed more than four years after the judgment and sentence became final on direct review, violating the absolute deadline in Florida Rule of Appellate Procedure 9.141(d)(5), and Mendoza did not allege that he was affirmatively misled about the results of the appeal by counsel.
[1] A petition alleging ineffective assistance of appellate counsel on direct review must be filed within 2 years after the judgment and sentence become final on direct revie…
[2] In no event may a petition alleging ineffective assistance of appellate counsel on direct review be filed more than 4 years after the judgment and sentence become final o…
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Join FLexlaw to unlock all legal intelligence“A petition alleging ineffective assistance of appellate counsel on direct review shall not be filed more than 2 years after the judgment and sentence become final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel. In no case shall a petition alleging ineffective assistance of appellate counsel on direct review be filed more than 4 years after the judgment and sentence become final on direct review.”
The governing statutory deadline for habeas corpus petitions claiming ineffective assistance of appellate counsel, which established the jurisdictional bar that led to dismissal
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Join FLexlaw to unlock all legal intelligenceMendoza was convicted in 2004 of nine crimes including attempted first-degree murder of a law enforcement officer, aggravated battery, aggravated assa…
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ON MOTION TO DISMISS
Salvador Mendoza (“Mendoza”) petitions this Court for a writ of habeas corpus alleging ineffective assistance of appellate counsel. The State moves to dismiss the petition as untimely. We agree and dismiss the petition as procedurally barred under *837Florida Rule of Appellate Procedure 9.141(d)(5).
In 2004, Mendoza was convicted and sentenced for the following crimes: (1) attempted first degree murder of a law enforcement officer; (2) aggravated battery of a law enforcement officer; (3) aggravated assault of an intern in a police car; (4) shooting a deadly missile; (5) resisting arrest with violence; (6) burglary of a dwelling; (7) possession of a firearm in the commission of a felony; (8) conspiracy to commit armed robbery; and (9) fleeing a police vehicle that has activated its siren. This Court on direct review in Mendoza v. State, 941 So.2d 523 (Fla. 3d DCA 2006), affirmed in part and reversed in part Mendoza’s sentence.1 On November 28, 2006, the mandate issued and Mendoza’s judgment and sentence became final.
Pursuant to Florida Rule of Appellate Procedure 9.141(d)(5):
A petition alleging ineffective assistance of appellate counsel on direct review shall not be filed more than 2 years after the judgment and sentence become final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel. In no case shall a petition alleging ineffective assistance of appellate counsel on direct review be filed more than 4 years after the judgment and sentence become final on direct review.
(emphasis added). Because Mendoza’s petition was filed on May 7, 2017—more than four years after his judgment and sentence became final on direct review, we dismiss Mendoza’s petition as procedurally barred under rule 9.141(d)(5).2 See Melara v. State, 997 So.2d 1135, 1136 (Fla. 3d DCA 2008); see also Burroughs v. State, 65 So.3d 1175 (Fla. 1st DCA 2011); Chance v. State, 65 So.3d 1176 (Fla. 1st DCA 2011). We caution Mendoza that the filing of any further procedurally barred petitions claiming appellate counsel was ineffective may result in the imposition of sanctions including but not limited to an order from this Court prohibiting Mendoza from filing any further pro se pleadings in this Court.
DISMISSED.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Torres v. State, 2017 WL 1908371 (Fla. 3d DCA 2019)
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Lucas v. State (Fla. 3d DCA 2019)…24, 2019) (dismissing petition for writ of habeas corpus alleging ineffective assistance of appellate counsel as untimely as it was filed more than four years after defendant’s judgment and sentence became final on direct review); Mendoza v. State, 224 So. 3d 836, 837 (Fla. 3d DCA 2017) (“Because [defendant’s] petition was filed on May 7, 2017–more than four years after his judgment and sentence became final on direct review, we dismiss [defendant’s] petition as procedurally barred under rule 9.141(d)(5).”).…
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Claridy v. State (Fla. 5th DCA 2021)
Authorities Cited
- Mendoza v. State, 941 So. 2d 523 (Fla. 3d DCA 2006)
- Chance v. State, 65 So. 3d 1176 (Fla. 1st DCA 2011)
- Melara v. State, 997 So. 2d 1135 (Fla. 3d DCA 2008)
- Lineberger v. State, 65 So. 3d 1175 (Fla. 1st DCA 2011)
- Burroughs v. State, 65 So. 3d 1175 (Fla. 1st DCA 2011)