GINO B. VONIA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gino Vonia appealed the summary denial of his petition for a writ of error coram nobis. The court held that while custodial status alone does not bar the writ, Vonia's post-conviction claim was procedurally time-barred and therefore the writ of error coram nobis could not be used to revive it.
The trial court properly denied the writ of error coram nobis because it did not involve newly discovered evidence or questions of fact. Additionally, the special 'all writs' writ recognized in Weir and Dequesada does not apply to Vonia's time-barred post-conviction claim, since he would be procedurally barred even if still incarcerated.
[1] Custodial status does not bar the writ of error coram nobis when the sentences being collaterally attacked have expired.
[2] A writ of error coram nobis may be denied if the petition does not concern newly discovered evidence or questions of fact.
Previewing 2 of 5 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“Even though Vonia was in custody at the time the petition was filed, the sentences he collaterally attacks had expired. Custodial status under these circumstances does not bar utilization of the writ.”
Establishes that custodial status alone does not bar the writ of error coram nobis when the sentences have expired.
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Join FLexlaw to unlock all legal intelligenceVonia was convicted and began serving a five-year sentence in 1984. He did not seek post-conviction relief prior to the January 1, 1987 deadline estab…
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PER CURIAM.
Gino Vonia appeals the summary denial of a petition for writ of error coram nobis. In denying the petition, the trial court ruled that the writ of error coram nobis was not an available remedy, in part, because Vonia was in custody. Even though Vonia was in custody at the time the petition was filed, the sentences he collaterally attacks had expired. Custodial status under these circumstances does not bar utilization of the writ. See Malcolm v. State, 605 So. 2d 945 (Fla. 3d DCA 1992).
The trial court also denied the writ because the petition did not concern itself with newly discovered evidence or with questions of fact. We hold that the trial court was correct in denying the motion on this ground. See Hallman v. State, 371 So. 2d 482 (Fla.1979); Malcolm, 605 So. 2d 945. In so doing, we acknowledge that this court has allowed the use of the writ of error coram nobis to attack legal errors not involving newly discovered evidence or questions of fact. In Weir v. State, 319 So. 2d 80 (Fla. 2d DCA 1975), we allowed the use of the writ to challenge a Gideon1 violation under the “all writs” authority given to circuit courts2 in order to provide Weir the same opportunity to challenge his conviction that a person in custody would have pursuant to Florida Rule of Criminal Procedure 3.850. We observed that “[o]nce you admit that Gideon is retroactive, it is hard to make a distinction between a person attacking his conviction on Gideon grounds who is still in custody and one making the same attack who has already served his term.” Weir, 319 So. 2d at 81. We followed Weir in Dequesada v. State, 444 So. 2d 575 (Fla. 2d DCA 1984), where the defendant would have been able to seek post-eonviction relief on ineffective assistance grounds but for the fact that he was no longer in custody. At the time Weir and Dequesada were decided, the two-year time limit within which posteonviction motions must now be filed did not exist. The two-year time limit was added by amendment in 1984.3 By subsequent amendment in 1985,4 those persons whose judgment and sentence became final prior to January 1, 1985, were given until January 1, 1987, to file a motion pursuant to rule 8.850.
Vonia was convicted and began to serve a five-year sentence in 1984. Because he did not seek posteonviction relief prior to January 1, 1987, his claim would be procedurally barred even if he was still incarcerated on the conviction he attacks. Therefore, unlike Weir and Dequesada, Vonia is not being denied a remedy that would be available to him if he were still incarcerated. Consequently, we find the special “all writs” writ of error eoram nobis utilized in Weir, which gives persons not in custody the same post-conviction relief opportunity that a person in custody would have, does not apply to Vo-nia’s claim.
Our holding that the writ of error coram nobis cannot be used by a person no longer in custody to breathe life into a post-conviction claim previously time barred should not be construed to limit collateral attack by proper use of the traditional writ of error coram nobis, such as a claim of newly discovered evidence, which has no time limit.
Affirmed.
CAMPBELL, A.C.J., and FULMER and WHATLEY, JJ., concur. . Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
. Art. V, § 5, Fla. Const. . The Florida Bar re Amendment to Rules of Criminal Procedure (Rule 3.850), 460 So. 2d 907 (Fla.1984).
. In re Rule 3.850 of the Florida Rules of Criminal Procedure, 481 So. 2d 480 (Fla.1985).
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Wood v. State, 750 So. 2d 592 (Fla. 1999)…]t must appear that defendant or his counsel could not have known [of the alleged facts] by the use of diligence.”), and that coram nobis claims cannot breath life into postconviction claims that have previously been held barred. See Vonia v. State, 680 So. 2d 438, 439 (Fla. 2d DCA 1996)(“[T]he writ of error coram nobis cannot be used by a person no longer in custody to breathe life into a postconviction claim previously time barred”). Wood’s petition is not time-barred since this Court is only now applying…
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Roan Peart v. State, 705 So. 2d 1059 (Fla. 3d DCA 1998)…ny probation or placed on community control, Rule 3.850 relief to raise Rule 3.172(c)(8) violations was never available to them. It is this Court’s view that the law does not presently provide non-custodial defendants relief.2 Contra Vonia v. State, 680 So. 2d 438 (Fla. 2d DCA), review denied, 672 So. 2d 544 (Fla.l996)(petition for “all writs” eoram nobis relief available to afford defendants out of custody same relief available to defendants in custody); Weir v. State, 319 So. 2d 80 (Fla. 2d DCA 1975)(same).…
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Stansel v. State, 825 So. 2d 1007 (Fla. 2d DCA 2002)…facts by the use of diligence. Kinsey v. State, 155 Fla. 159, 19 So. 2d 706, 707 (1944). Because Stansel’s first three claims allege facts that he knew or should have known at the time of his sentence, the claims are time-barred. See Vonia v. State, 680 So. 2d 438, 439 (Fla. 2d DCA 1996) (“[T]he writ of error coram nobis cannot be used ... to breathe life into a postconviction claim previously time barred.”). [*1009] As to Stansel’s fourth, fifth, and sixth claims, the trial court found that these claims rais…1 / 2
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gideon v. Wainwright, 372 U.S. 335 (U.S. 1963)
- Hallman v. State, 371 So. 2d 482 (Fla. 1979)
- Weir v. State, 319 So. 2d 80 (Fla. 2d DCA 1975)
- THE FLA. BAR RE AMENDMENT TO RULES OF CRIM. PROCEDURE (RULE 3.850), 460 So. 2d 907 (Fla. 1984)
- Vernal Earle Malcolm v. State, 605 So. 2d 945 (Fla. 3d DCA 1992)
- In re Rule 3.850 OF the Fla. Rules OF Crim. Procedure, 481 So. 2d 480 (Fla. 1985)
- HUB Fin. Corp. & Mark A. Varea v. The Racquet Club OF Fort Lauderdale Ass'n, Inc., 444 So. 2d 575 (Fla. 4th DCA 1984)
- Gonzalo Dequesada v. State, 444 So. 2d 575 (Fla. 2d DCA 1984)