JEAN COTY RIDORE
v.
THE STATE OF FLORIDA
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A successive motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 is properly dismissed when the issues raised could have been litigated on direct appeal.
[1] Issues that could have been raised and litigated on direct appeal are procedurally barred from collateral attack through a successive postconviction motion for relief und…
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Join FLexlaw to unlock all legal intelligence“Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack.”
Citation to Smith v. State, 445 So. 2d 323, 325 (Fla. 1983) regarding the scope of postconviction relief.
Jean Coty Ridore filed a successive postconviction motion asserting various trial-level errors and claiming his appellate attorney failed to raise pro…
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MILLER, J.
Appellant, Jean Coty Ridore, appeals the dismissal of his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, appellant asserted a myriad of errors at the trial level and alleged that his appellate attorney “opted to raise a single issue that was not properly preserved for appellate review and the issue was not made part of the evidence/record while [he or she] totally ignored the issues that were properly preserved.” It is axiomatic that a motion for postconviction relief is not a second appeal and cannot be used to litigate issues that could have been raised on direct appeal or in prior postconviction proceedings. Smith v. State, 445 So. 2d 323, 325 (Fla. 1983) (“Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack.”); Everett v. State, 928 So. 2d 1241, 1242 (Fla. 3d DCA 2006) (“A defendant seeking postconviction relief is procedurally barred from raising claims that he could have raised and should have raised on direct appeal.”). Accordingly, we affirm without prejudice to any right appellant may have to file a petition pursuant to Florida Rule of Appellate Procedure 9.141(c), alleging ineffective assistance of appellate counsel. Affirmed.
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Citator
Authorities Cited
- Smith v. State, 445 So. 2d 323 (Fla. 1983)
- Everett v. State, 928 So. 2d 1241 (Fla. 3d DCA 2006)