DINO K. CRESCENZO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dino Crescenzo appeals the dismissal of his second Rule 3.850 postconviction motion as successive. The court reversed, holding that a successive motion cannot be dismissed when the prior motion was dismissed without the court deciding the specific claim on its merits.
A successive motion cannot be dismissed under Rule 3.850(f) if the prior motion was not decided on the merits as to that particular claim, even though it was dismissed with prejudice. The lack of a prior decision on the merits is crucial and will generally bar dismissal as successive.
[1] A successive motion for postconviction relief may not be dismissed if the grounds raised were not previously adjudicated on their merits.
[2] A prior dismissal of a postconviction motion with prejudice does not bar a subsequent motion raising the same grounds if those grounds were not decided on the merits.
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“The lack of a prior decision on the merits as to a timely claim is crucial: it will generally bar the postconviction court from dismissing a motion as successive.”
Establishes the controlling legal standard for when successive motions can be dismissed
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Join FLexlaw to unlock all legal intelligenceCrescenzo filed a timely 3.850 motion in March 2005 asserting ineffective assistance of counsel for failing to inform him of a deadline to accept a pl…
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[*151] FULMER, Judge.
Dino K. Crescenzo appeals from the postconviction court’s order dismissing his Florida Rule of Criminal Procedure 3.850 motion as successive. Because his prior claim was not decided on the merits, we reverse.
In a timely motion for postconviction relief filed in March 2005, Mr. Crescenzo asserted, in ground four, ineffective assistance of his trial counsel for failing to inform him that he was required to immediately accept a plea offer or risk that it would be withdrawn. After deciding to take the evening to consider whether to accept the plea offer, Mr. Crescenzo discovered the next morning that the offer had been rescinded; he was thus forced to enter a plea requiring that he serve a sentence twice that of the original offer. The postconviction court ordered the State to respond to ground four. The State conceded that an evidentiary hearing would be required. Before a hearing was scheduled, however, Mr. Crescenzo voluntarily dismissed his motion in its entirety. The postconviction court entered an order of dismissal with prejudice.
In January 2006, still within the two-year limit for filing a timely 3.850 motion, Mr. Crescenzo filed the present motion asserting the identical claim. The post-conviction court dismissed the motion as successive, finding that this claim had been dismissed with prejudice after some of the claims in his previous motion had been decided on the merits. The court also noted the prohibition against allowing defendants to file piecemeal claims of ineffective assistance of counsel, citing Pope v. State, 702 So. 2d 221, 223 (Fla.1997). In Pope, however, the defendant’s successive motion was untimely, and Pope’s previous motion appears to have been decided on its merits.
The lack of a prior decision on the merits as to a timely claim is crucial: it will generally bar the postconviction court from dismissing a motion as successive. Here, although the postconviction court had entered an order dismissing Mr. Cres-eenzo’s first motion with prejudice, the court had never considered this particular claim on its merits. Rule 3.850(f) prohibits the filing of a second motion for postcon-vietion relief if the court finds that the subsequent motion does not allege new grounds for relief and that the prior motion was decided on its merits. “Thus, a successive motion that raises the same grounds as a prior motion may not be dismissed if those grounds were not previously adjudicated on their merits.” Wright v. State, 741 So. 2d 1146, 1147 (Fla. 2d DCA 1999) (citing Browning v. State, 687 So. 2d 950 (Fla. 1st DCA 1997)); see also Cabrera v. State, 721 So. 2d 1190, 1191 (Fla. 2d DCA 1998); Wallace v. State, 463 So. 2d 467, 468 (Fla. 2d DCA 1985).
We reverse the postconviction court’s order of dismissal and, based on the State’s previous concession that an evidentiary hearing is required on this claim, remand for an evidentiary hearing.
WHATLEY and CANADY, JJ„ Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cliff Verity v. State, 56 So. 3d 77 (Fla. 2d DCA 2011)…issal of a postconviction motion as successive, observed that “[t]he lack of a prior decision on the merits as to a timely claim is crucial: it will generally bar the postcon-viction court from dismissing a motion as successive.” Crescenzo v. State, 987 So. 2d 150, 151 (Fla. 2d DCA 2008). Similarly, in Frew v. State, 947 So. 2d 1275, 1276 (Fla. 2d DCA 2007), we reversed the circuit court’s order dismissing a successive motion under rule 3.850(f) because there was no suggestion that the defendant abused the po…
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MacKey v. State, 236 So. 3d 504 (Fla. 5th DCA 2018)…ellant's motion, providing Appellant the opportunity to file an amended motion. Thus, the original motion was not decided on the merits, and therefore Appellant's key witness claim in the amended motion cannot be considered. See Crescenzo v. State , 987 So. 2d 150, 151 (Fla. 2d DCA 2008) ("[A] successive motion that raises the same grounds as a prior motion may not be dismissed if those grounds were not previously adjudicated on their merits." (citation omitted) ); see [*505] also Rosenkrantz v. Hall , 172 So…
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Mackey v. State (Fla. 5th DCA 2018)…pellant's motion, providing Appellant the opportunity to file an amended motion. Thus, the original motion was not decided on the merits, and therefore Appellant's key witness claim in the amended motion cannot be considered. See Crescenzo v. State, 987 So. 2d 150, 151 (Fla. 2d DCA 2008) ("[A] successive motion that raises the same grounds as a prior motion may not be dismissed if those grounds were not previously adjudicated on their merits." (citation omitted)); see also Rosenkrantz v. Hall, 172 So. 2d 518,…
Authorities Cited
- Pope v. State, 702 So. 2d 221 (Fla. 1997)
- Cabrera v. State, 721 So. 2d 1190 (Fla. 2d DCA 1998)
- Wright v. State, 741 So. 2d 1146 (Fla. 2d DCA 1999)
- Wallace v. State, 463 So. 2d 467 (Fla. 2d DCA 1985)
- Germanson v. State, 687 So. 2d 950 (Fla. 3d DCA 1997)
- Jacques Georges v. State, 687 So. 2d 950 (Fla. 3d DCA 1997)