TYRONE RAFAEL COX, APPELLANT,
v.
STATE OF FLORIDA/APPELLEE
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Tyrone Rafael Cox appeals the summary denial of his rule 3.850 motion for postconviction relief challenging the voluntariness of his plea. The Fourth District Court of Appeal reverses, holding that the motion is timely because defendants have two years from the Heggs decision to raise such claims, and that the motion is not successive because it alleges new grounds based on facts that could not have been known earlier.
The motion is neither untimely nor successive. Defendants have two years from the issuance of the Heggs opinion in which to raise rule 3.850 claims based on that decision, as the predicate facts could not have been known earlier. The motion is not successive because it alleges new grounds that could not have been known at the time of the earlier motions, and the prior appellate opinion affirmed relief without prejudice to filing a rule 3.850 motion challenging voluntariness.
[1] A motion for postconviction relief is timely if filed within two years from the issuance of the supreme court's opinion in Heggs v. …
[2] A successive motion for postconviction relief may be dismissed if it fails to allege new or different grounds for relief and the prior determination was on the merits, or…
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Join FLexlaw to unlock all legal intelligence“defendants should have two years from the issuance of the supreme court's opinion in Heggs in which to raise it in a rule 3.850 motion, as the facts on which the claim is predicated could not have been known earlier”
Establishes the timeliness standard for Heggs-related rule 3.850 motions, extending the two-year limitation based on the discovery exception.
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Join FLexlaw to unlock all legal intelligenceCox entered nolo contendere pleas in three cases in 1995-1997 for sentences that were downward departures from the 1995 sentencing guidelines but with…
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PER CURIAM.
Tyrone Rafael Cox appeals the summary denial of his motion for postconviction relief as time-barred, and as successive to a prior motion for postconviction relief and a prior motion to correct an illegal sentence. We reverse.
Appellant entered nolo contendere pleas in three cases in return for sentences which were downward departure sentences from the 1995 sentencing guidelines, but which were within the sentencing range under the 1994 version of the guidelines. His prior rule 3.800(a) motion sought resentencing pursuant to Heggs v. State, 759 So. 2d 620 (Fla.2000) (sustaining a constitutional challenge to the 1995 sentencing guidelines, enacted by chapter 95-184, based on violation of the single subject rule), alleging that all offenses were committed after October 1, 1995, and before May 24, 1997. See Trapp v. State, 760 So. 2d 924 (Fla.2000) (holding that those persons with standing to challenge their sentence under Heggs were those whose offenses were committed within that time frame). As all his sentences were within the 1994 guidelines, the trial court summarily denied relief, and this court affirmed, but without prejudice to Appellant’s filing a timely sworn rule 3.850 motion challenging the voluntary and intelligent character of his plea. See Cox v. State, 779 So. 2d 601 (Fla. 4th DCA 2001) (citing Mortimer v. State, 770 So. 2d 743 (Fla. 4th DCA 2000)).
Appellant then filed the instant rule 3.850 motion in which he alleged that, had he known the guidelines in effect when he entered his plea were going to be declared unconstitutional, and had he known that the 1994 sentencing guidelines that should have been in effect were much lower, he would not have entered the negotiated plea that was offered to him. We read that motion, in view of its allegations and citations, as a request to withdraw the plea, not as another request for resentencing.1 The trial court denied the motion as untimely (because the conviction and sentence in each case became final in 1996, and more than two years had since elapsed), and as successive (in that he filed a prior rule 3.850 motion in 1999 and a prior rule 3.800(a) motion seeking relief under Heggs).
We find the instant motion neither untimely nor successive. With respect to timeliness, this court has held that defendants should have two years from the issuance of the supreme court’s opinion in Heggs in which to raise it in a rule 3.850 motion, as the facts on which the claim is predicated could not have been known earlier. See Honeycutt v. State, 805 So. 2d 987 (Fla. 4th DCA 2001); Jenkins v. State, 771 So. 2d 37, 38 (Fla. 4th DCA 2000). Accord Murphy v. State, 773 So. 2d 1174 (Fla. 2d DCA 2000). See also Fla. R.Crim. P. 3.850(b)(1) (exception to two-year time limitation where “the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise.of due diligence”). As we did in Honeycutt, we certify conflict with Coppola v. State, 795 So. 2d 258 (Fla. 5th DCA 2001), and Regan v. State, 787 So. 2d 265 (Fla. 1st DCA 2001).`
We also find the motion is not successive. In Foster v. State, 614 So. 2d 455, 458 (Fla.1992), the supreme court stated,
A successive motion may be dismissed if it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the failure to raise those issues in a prior motion constitutes an abuse of process. Fla. R.Crim.P. 3.850. To overcome this bar, a movant must allege that the grounds asserted were not known and could not have been known to him at the time of the earlier motion.
Obviously, the new grounds asserted in the instant motion were not and could not have been known at the time of the earlier motion. As for the prior rule 3.800(a) motion seeking Heggs relief, this court’s opinion specifically stated that its affir-mance was without prejudice to Appellant’s filing a rule 3.850 motion challenging the voluntariness of his plea, which is precisely what he did.
Accordingly, we reverse and remand for the trial court to consider the motion on its merits.
GUNTHER, SHAHOOD and HAZOURI, JJ., concur. . Appellant clarifies in his initial brief to this court that that was always his intention.
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Gregory Banks v. State, 887 So. 2d 1191 (Fla. 2004)…clusion on both of these issues and, in fact, have certified conflict with Booker and Regan in a number of cases. In addition, the First District itself has expressed serious concerns about these issues and their proper resolution. In Cox v. State, 805 So. 2d 1042, 1044 (Fla. 4th DCA 2002), for example, the Fourth District explained that the court had held “that defendants should have two years from the issuance of the supreme court’s opinion in Heggs in which to raise it [*1196] in a rule 3.850 motion, as th…1 / 2
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Coppola v. State, 938 So. 2d 507 (Fla. 2006)…acts on which his claim is predicated could not have been known earlier.” Jenkins, 771 So. 2d at 38; see also Carvello 824 So. 2d at 203 (stating defendants have two years from the issuance of Heggs to raise a claim in a 3.850 motion); Cox v. State, 805 So. 2d 1042, 1044 (Fla. 4th DCA 2002) (holding the two-year limitations period for defendant’s motion for postconviction relief started to run when Heggs decision was issued), quashed sub nom. State v. Shiva, 894 So. 2d 923 (Fla.2005). The Second District adopt…
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State v. Basdeo Shiva, 894 So. 2d 923 (Fla. 2005)…PER CURIAM. We have for review the decisions in Shiva v. State, 782 So. 2d 501 (Fla. 4th DCA [*924] 2001), Cox v. State, 805 So. 2d 1042 (Fla. 4th DCA 2002), Carvello v. State, 824 So. 2d 202: (Fla. 4th DCA 2002), and Szymanowski v. State, 870 So. 2d 137 (Fla. 4th DCA 2003), based on certified conflict with various decisions of other district courts of appeal. We have jurisdiction. S…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Xzavier Trapp v. State, 760 So. 2d 924 (Fla. 2000)
- Pagliaro v. Penske Auto Ctrs., Inc., 773 So. 2d 1174 (Fla. 2d DCA 2000)
- Foster v. State, 614 So. 2d 455 (Fla. 1992)
- Regan v. State, 787 So. 2d 265 (Fla. 1st DCA 2001)
- Mortimer v. State, 770 So. 2d 743 (Fla. 4th DCA 2000)
- Jenkins v. State, 771 So. 2d 37 (Fla. 4th DCA 2000)
- Coppola v. State, 795 So. 2d 258 (Fla. 5th DCA 2001)
- Peyton Honeycutt v. State, 805 So. 2d 987 (Fla. 4th DCA 2001)
- Caldeira v. State, 779 So. 2d 601 (Fla. 4th DCA 2001)