BURT NORMAN HICKOX, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hickox appeals the denial of his second motion for post-conviction relief challenging his 1985 capital sexual battery conviction and life sentence. The court affirmed the trial court's finding that his first post-conviction counsel was not ineffective for failing to raise newly-discovered evidence issues, but left open the possibility for Hickox to file a new motion raising the victim's alleged recantation.
The court affirmed the trial court's finding that Mahon was not ineffective because competent, substantial evidence showed Mahon was not made aware of the recantation issue in time to raise it in the first motion. Additionally, Mahon could not have been ineffective for failing to raise newly-discovered evidence claims in a 1987 Rule 3.850 motion because the proper remedy was not clarified until Richardson v. State in 1989. However, Hickox may file a new Rule 3.850 motion raising the recantation issue under the exception to the two-year time limitation for facts unknown to the movant.
[1] A prior denial of a motion for post-conviction relief does not preclude a subsequent motion if the subsequent motion raises new issues.
[2] An attorney's failure to raise an issue in a prior post-conviction motion does not constitute ineffective assistance of counsel if the attorney was not aware of the issue…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Careful evaluation of the testimony of each of the defendant's witnesses reveals no credible evidence that any matters were made known to Lacy Mahon prior to Mr. Mahon's preparation of the defendant's first Rule 3.850 motion other than the issue of the defendant not being allowed to testify.”
The trial court's finding, which the appellate court found supported by competent substantial evidence, that Mahon was not aware of the recantation issue in time to raise it in the first motion.
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Join FLexlaw to unlock all legal intelligenceIn June 1985, Hickox was convicted by jury of capital sexual battery and sentenced to life imprisonment with no possibility of parole for 25 years. In…
The full statement of facts, procedural history, and disposition for this case are member content.
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SHIVERS, Chief Judge.
Appellant/defendant, Burt Norman Hick-ox, appeals the trial court’s denial of his motion for post-conviction relief, filed pursuant to Fla.R.Crim.P. 3.850. We affirm.
In June of 1985, appellant Hickox was convicted by jury of capital sexual battery and sentenced to life imprisonment with no possibility of parole for 25 years. His conviction and sentence were affirmed on appeal to this court in Hickox v. State, 492 So. 2d 744 (Fla. 1st DCA 1986). In January of 1987, appellant filed a motion for post-conviction relief through private counsel, Lacy Mahon, raising only one issue — that appellant had been denied the right to testify at trial in his own behalf. The motion was denied by the trial court, and the denial affirmed by this court in Hickox v. State, 520 So. 2d 588 (Fla. 1st DCA 1988).
On August 8, 1988, appellant filed a second, pro se, motion for post-conviction relief, arguing that attorney Mahon was ineffective for failing to raise several issues in the first motion for post-conviction relief, including, among others, the sexual battery victim’s alleged recantation of her trial testimony one year after the trial. According to appellant, attorney Mahon was made aware of all of the allegedly omitted issues prior to filing the first motion, but nonetheless raised only the issue of appellant’s failure to testify at trial.
Following an evidentiary hearing at which six witnesses testified, the trial court denied appellant’s second motion, finding:
Careful evaluation of the testimony of each of the defendant’s witnesses reveals no credible evidence that any matters were made known to Lacy Mahon prior to Mr. Mahon’s preparation of the defendant’s first Rule 3.850 motion other than the issue of the defendant not being allowed to testify_ Mr. Mahon ... testified that he was confident that if any additional matters had been disclosed, specifically matters involving witnesses changing their testimony, that he would certainly have raised them in his Rule 3.850 motion. The court finds no basis for not accepting that assertion.
We agree with the trial court’s findings. Our own careful review of the evidence presented at the hearing reveals competent substantial evidence to support a finding that Mahon was not made aware of any issues, other than appellant’s failure to testify at trial, in time to raise them in the first motion. In addition, we note that at the time the first motion was filed, the only remedy for raising issues of newly-discovered evidence was a petition for writ of error coram nobis. Hallman v. State, 371 So. 2d 482 (Fla.1979); Smith v. State, 400 So. 2d 956 (Fla.1981). It was not until 1989, in Richardson v. State, 546 So. 2d 1037 (Fla.1989), that the supreme court held that such claims should instead be raised in a motion for post-conviction relief pursuant to Rule 3.850. Accordingly, Mahon’s failure to raise the issue of the victim’s recantation in the 1987 motion for post-conviction relief could not have constituted ineffective assistance of counsel. We therefore affirm the trial court’s denial of appellant’s second motion for post-conviction relief.
Our affirmance shall not, however, bar the appellant from raising the issue of the victim’s alleged recantation, if he so desires, in a new Rule 3.850 motion for post-conviction relief. As in Richardson, supra, the newly-discovered evidence issue in the instant case falls within the exception to the two-year time limitation in Rule 3.850 for claims based on alleged facts which “were unknown to the movant or his attorney and could not have been ascer tained by the exercise of due diligence.” Fla.R.Crim.P. 3.850.
AFFIRMED.
JOANOS and ZEHMER, JJ., concur.
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Hickox v. State, 604 So. 2d 528 (Fla. 1st DCA 1992)…ecantation by the sexual battery victim. The trial court denied the motion after an evidentiary hearing, finding no credible evidence that Ma-hon knew about the recantation prior to preparing the 1987 motion. This court affirmed in Hickox v. State, 569 So. 2d 776 (Fla. 1st DCA1990) (Hickox III). In support of its ruling, the court noted that, in 1987, the only vehicle for raising newly discovered evidence was a petition for writ of eoram nobis; only in Richardson v. State, 546 So. 2d 1037 (Fla.1989) was it s…
Authorities Cited
- Hallman v. State, 371 So. 2d 482 (Fla. 1979)
- Smith v. State, 400 So. 2d 956 (Fla. 1981)
- Richardson v. State, 546 So. 2d 1037 (Fla. 1989)
- Burt Hickox v. State, 492 So. 2d 744 (Fla. 1st DCA 1986)