EFTA01735459.pdf

Wood v. State, 750 So.2d 592 (1999) 24 Re. L. Weekly S240 6 Cases that cite this headnote 750 So.2d 592 Editor's Note: Additions are indicated by Text and deletions 4 Criminal Law hNM for Proceedings by Text. Upon Supreme Court's issuance of opinion Supreme Court of Florida. holding that limits contained in rule governing motion to vacate, set aside, or correct Robert Earl WOOD, Petitioner, sentence apply to petitions for writ of error v. M. defendants adjudicated guilty prior STATE of Florida, Respondent. to that decision had two years from filing date of decision, May 27, 1999, within which to No. 91,333. May 27, mg. file claims traditionally cognizable under Petitioner sought writ of error MI The Circuit Mt West's F.S.A. RCrP Rule 3.850(h). Court, Bay County, Dedee Costello, J., denied petition 127 Cases that cite this headnote as IM -barred. Petitioner appealed. The District Court of Appeal, First District, 698 So.2d 293. affirmed and certified conflict. The Supreme Court, Shaw, J., held that limits 5 Criminal Law r Nature of Remedy contained in rule governing motion to vacate, set aside, or All claims cognizable under the writ of error correct sentence apply to petitions for writ of error NM are available to noncustodial movants under rule governing motion to vacate, set aside, or correct sentence. West's F.S.A. RCrP Quashed and remanded. Rule 3.850. Wells, J., filed concurring opinion. 32 Cases that cite this hcadnote Overton, Senior Justice, dissented. West Headnotes (5) Attorneys and Law Finns Criminal law 4- for Proceedings l= limits contained in rule governing motion *592 Bruce S. Rogow and Beverly A. Pohl of Bruce S. to vacate, set aside, or correct sentence apply to Rogow, P.A., Fort Lauderdale, Florida, for Petitioner. petitions for writ of error Orem non. West's Robert A. Butterwonh, Attorney General, Jaincs W. Rogers, F.S.A. RCrP Rule 3.850(h). Tallahassee Bureau Chief, Criminal Appeals, and 1risha E. Yvleggs, Assistant Attorney General, Tallahassee, Florida, for 32 Cases that cite this hcadnote Respondent. Opinion 2 Criminal Law h , for Proceedings Discovery of facts giving rise to a SIIAW, J. claim is governed by the due diligence standard. West's F.S.A. RC:rP Rule 3.850(b). We have for review Woad r. Slate. 698 So.2d 293 (Ha. 1st DCA 1997), wherein the district court certified conflict with 2 Cases that cite this headnote Maktitm v. State, 605 So.2d 945 (Ha. 3d IDCA 1992). We have jurisdiction. Art. V. 3(b)(4), Ha. Coast. We quash the Wood decision, although we approve of the reasoning 3 Criminal Law r MINI for Proceedings contained therein as explained below. MN claims cannot breath life into posteonviction claims that have previously been Robert Earl Wood was arrested on October 5, 1987, and held barred. charged with reckless driving and possession of cocaine. lie pled nolo contendere to the charges in 1988. The court 'NesilawNekt 2011 Thomson Reuters. No claim to original U.S. Government Works. EFTA_R1_00019187 EFTA01735459 Wood v. State, 750 So.2d 592 (1999) 24 Fla. L. Weekly S240 withheld adjudication and placed him on probation. which he completed in March 1992. A federal trial court subsequently In considering a petition for writ of error adjudicated him guilty of drug charges and imposed an the appellate court has the responsibility to determine the enhanced sentence of concurrent 240-and 120-month terms legal effect of the facts alleged upon the previously entered because his 1988 plea counted as a prior offense under federal judgment. When the appellate court finds that the facts arc law. sufficient in legal effect, the next step is for the trial court to determine the truth of the allegations in an appropriate In 1998 and while in federal prison, Wood filed a pro se evidentiary hearing. petition for a writ of error ElNI in Florida circuit court, seeking to have his 1988 plea set aside. *593 He The general rule repeatedly employed by this Court to asserted that his lawyer did not tell him at the he entered establish the sufficiency of an application for writ of error the plea that it could be used against him in federal court as Ism Mal is that the alleged facts must be of *594 such a "prior offense." Wood sought a writ of error a vital nature that had they been known to the trial court, MEI rather than relief under Florida Rule of Criminal Procedure they conclusively would have prevented the entry of the 3.850 because he had completed his sentence for the 1988 judgment This traditional "conclusiveness test" in error convictions and no longer considered himself "in custody" as Ms ins proceedings is predicated on the need for finality in judicial proceedings. This is a sound principle, required under the rule. I The circuit court found that Wood for litigants and courts alike must be able to determine with met the "in custody" requirement, considered the petition a certainty a IM when a dispute has come to an cnd. motion under ride 3.850, and denied it as —barred. The district court affirmed and certified conflict with Malcolm, Id. at 484-85 (citations and emphasis omitted). wherein the court held that lujnlike the general two-year We subsequently held that rule 3.850 was patterned after the 11M for filing a motion to vacate under rule 3.850 writ oferror En and largely supplanted the writ for ... there is no express for filing a petition criminal defendants in custody: for writ of error M." 605 So.2d at 949. Wood sought review before this Court and we appointed counsel to The rule was copied almost verbatim from its federal represent him on the issue of whether writs of error counterpart, section 2255 of Tide 28 of the United States are subject to the contained in rule Code, in effect since 1948. As this court noted in State v. 3.850. Alatera[. 266 So.2d 661 (Fla. 1972)], "Mhe Reviser's Note following i,4 2755 states: `This section restates, clarifies and This Court in I/altman 1'. Stare. 371 So.2d 48' I I '0791, amplifies the procedure in the nature of the ancient writ described the contours of the writ of error iteram non', of error IMMO Rota.' " It therefore appears that from the an ancient writ designed to correct judgments and sentences beginning this rule was intended to serve the function of a based on errors of fact: writ of error 1M. The requirements of a writ oferror gam WAS have been set out in numerous cases from this Court. A petition for this writ addressed to the appellate court must disclose fully There is no principled reason why some claims based on the alleged facts relied on; mere conclusory statements newly discovered evidence must be brought under ride are insufficient. The appellate court must be afforded a 3.850 and others must be brought under full opportunity to evaluate the alleged facts for itself and We believe the only currently viable use for the writ of to determine whether they establish prima facie grounds. error MN is where the defendant is no longer Furthermore, the petition should assert the evidence upon in custody. thereby precluding the use of rule 3.850 as a which the alleged facts can be proved and the source of remedy. such evidence. The function ofa writ of error sign as is to correct errors of fact, not errors of law. The facts upon For these reasons, we hold that all newly discovered which the petition is based must have been unknown by the evidence claims must be brought in a motion pursuant to trial court, by the party, or by counsel at the IM of trial, Florida Rule of Criminal Procedure 3.850, and will not be and it must appear that defendant or his counsel could not cognizable in an application fora writ oferror have known them by the use of diligence. unless the defendant is not in custody. ,;c'estiaviNext (f) 2011 Thomson Reuters. No claim to original U.S. Government Works. EFTA_R1_00019188 EFTA01735460 Wood v. State, 750 So.2d 592 (1999) 24 Fla. L. Weekly S240 Richwylswz v. Stow. 546 So.2d 1037, 1038-39 (Fla.1989) Fla. R.Crim. P. 3.850. Given the similarity of purpose (citations and emphasis omitted). between the rule and the writ, we conclude that the above limits shall be applicable to petitions for writ of error 1 The district court in the present cast interpreted the above language in Richardson thusly: 2 3 Limiting claims cognizable under to In light of the supreme court's decision in [Richardson ], the same IM limit that is applied to rule 3.850 motions virtually all claims formally [sic] cognizable by petition places both such claimants on equal footing and prevents for writ of error MI may now be presented unwarranted circumvention of the rule. We hasten to add that only under rule 3.850, which contains a requirement that the discovery of facts giving rise to a claim will the motion be filed within two years after the judgment continue to be governed by the due diligence standard, see and sentence become final. The only apparent continuing Ilaihnon. 371 So.2d at 485 ("Hit must appear that defendant application for the writ of error Ceram Wal is in the or his counsel could not have known [of the alleged facts] by situation where the petitioner would have a viable claim the use of diligence."), and that claims cannot under rule 3 850 but for the "in custody" requirement. A breath life into postconviction claims that have previously petition for a writ of error therefore must been held barred. See Vonia v. State. 680 So.2d 438, 439 (Fla. satisfy the two-year of rule 3.850. If the two- 3d DCA 1996) ("[T]he writ of error ME cannot be year were not applied to petitions for writs used by a person no longer in custody to breathe life into a oferror they could be used to circumvent the postconviction claim previously barred."). rule. 4 Wood's petition is not IIM-barred since this Court is only Wood, 698 So.2d at 293-94. The State contends that the now applying this period to writs of error district court was correct in concluding that unless the IM M. However, this decision shall apply to all defendants limits contained in rii le 3.850 are applied to petitions for writ adjudicated guilty after the date this decision is filed, while of error the writ could be used to circumvent all defendants adjudicated prior to this opinion shall have the rule. We agree with the district court's conclusion for the two years from the filing date within which to file claims reasons set forth in this opinion. traditionally cognizable under tins M. Accordingly, we As we explained in Richardson, the writ and rule are intended quash Wood and remand the case for further proceedings. to serve the same purpose. The IM limits for filing a rule 5 Recognizing the similarity of the writ of error 3.850 motion arc as follows: and role 3.850 relief, we hereby amend the rule by b i Time Lim. A motion to vacate a sentence that deleting the "in custody" requirement so that both custodial exceeds the limits provided by law may be filed at any and noncustodial movants may rely on and be governed by the NM. No other motion shall be filed or considered pursuant rule, thereby eliminating the need for the writ. By extending to this rule if filed more than 2 years after the judgment rule 3.850 relief to noncustodial claimants, we do not narrow *595 and sentence become final in a noncapital case or in any way the reliefheretofore available to defendants under more than I year after the judgment and sentence become M. All claims cognizable under the writ are now final in a capital case in which a death sentence has been available to noncustodial movants under the rule. imposed unless it alleges that Rule 3.850 is amended to read as follows: (I) the facts on which the claim is predicated were Rule 3.850. Motion to Vacate, Set Aside, or Correct unknown to the movant or the movant's attorney and could Sentence not have been ascertained by the exercise of due diligence. or (a) Grounds for Motion. A prisoner person convicted and sentenced, whether noncustodial or in custody under (2) the fundamental constitutional right asserted was not sentence of a court established by the laws of Florida, established within the period provided for herein and has claiming the right to be relieved of judgment or released been held to apply retroactively. from custody on the ground that the judgment was entered or that the sentence was imposed in violation of the ',Vest lawNext C) 2011 Thomson Reuters. No claim to original U.S. Government Works. EFTA_R1_00019189 EFTA01735461 Wood v. State, 750 So.2d 592 (1999) 24 Re. L. Weekly S240 Constitution or laws of the United States or of the State of Florida, that the court was without jurisdiction to enter the (d) Procedure; Evidentiary Hearing; Disposition. On filing judgment or to impose the sentence, that the sentence was of a rule 3.850 motion, the clerk shall forward the motion in excess of the maximum authorized by law, that the plea and file to the court. If the motion, files, and records in the was given involuntarily, or that the judgment or sentence case conclusively show that the -prisoner movant is entitled is otherwise subject to collateral attack may move, in the to no relief, the motion shall be denied without a hearing. court that entered the judgment or imposed the sentence to In those instances when the denial is not predicated on the vacate, set aside, or correct the judgment or sentence. legal insufficiency of the motion on its face, a copy of that portion of the files and records that conclusively shows that (b) MIE a. A motion to vacate a sentence that the prisoner movant is entitled to no reliefshall be attached exceeds the limits *596 provided by law may be filed to the order. Unless the motion, files, and records of the at any St No other motion shall be filed or considered case conclusively show that the movant is entitled pursuant to this rule if filed more than 2 years after the to no relief, the court shall order the state attorney to file judgment and sentence become final in a noncapital case or an answer or other pleading within the period of= fixed more than I year after the judgment and sentence become by the court or to take such other action as the judge deems final in a capital case in which a death sentence has been appropriate. The answer shall respond to the allegations of imposed unless it alleges that the motion. In addition it shall state whether the movant has used any other available state remedies including any other (1) the facts on which the claim is predicated were postconviction motion under this rule. The answer shall unknown to the movant or the movant's attorney and could also state whether an evidentiary hearing was accorded the not have been ascertained by the exercise of due diligence, movant. If the motion has not been denied at a previous or stage in the proceedings, the judge, after the answer is filed, shall determine whether an evidentiary hearing is (2) the fundamental constitutional right asserted was not required. If an evidentiary hearing is not required, the established within the period provided for herein and has judge shall make appropriate disposition of the motion. If been held to apply retroactively. an evidentiary hearing is required, the court shall grant a (c) Contents ofMotion. The motion shall be under oath and prompt hearing thereon and shall cause notice thereof to be include: served on the state attorney, determine the issues, and make findings of fact and conclusions oflaw with respect thereto. (I) the judgment or sentence under attack and the court If the court finds that the judgment was rendered without which rendered the same; jurisdiction, that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there (2) whether there was an appeal from the judgment or has been such a denial or infringement of the constitutional sentence and the disposition thereof; rights of the prisoner movant as to render the judgment vulnerable to collateral attack, the court shall vacate and (3) whether a previous postconviction motion has been filed, and if so, how many; set aside the judgment and shall discharge or resentence the prisoner movant, grant a new trial, or correct the sentence (4) if a previous motion or motions have been filed, the as may appear appropriate. reason or reasons the claim or claims in the present motion *597 (c) Prisoner's Movant's Presence Not Required. A were not raised in the former motion or motions; court may entertain and determine the motion without (5) the nature of the relief sought; and requiring the production or the prisoner movant at the hearing. (6) a brief statement of the facts (and other conditions) relied on in support of the motion. (1) Successive Motions. A second or successive motion may be dismissed if the judge finds that it fails to allege new This rule does not authorize relief based on grounds that or different grounds for relief and the prior determination could have or should have been raised at trial and, if was on the merits or, if new and different grounds arc properly preserved, on direct appeal of the judgment and alleged, the judge finds that the failure of the movant sentence. or the attorney to assert those grounds in a prior motion ,;c'estiaviNext (f) 2011 Thomson Reuters. No claim to original U.S. Government Works. EFTA_R1_00019190 EFTA01735462 Wood v. State, 750 So.2d 592 (1999) 24 Fla. L. Weekly S240 constituted an abuse of the procedure governed by these the amended rule be advertised in The Florida Bar News, that rules. the Criminal Procedure Rules Committee of The Florida Bar review the rule for comment, and that all interested parties (g) Appeal; Rehearing; Service on Prisoner Movant. An submit comments regarding the rule within sixty days from appeal may be taken to the appropriate appellate court from the filing of this opinion. the order entered on the motion as from a final judgment on application for writ of habeas corpus. All orders denying It is so ordered. motions for postconviction relief shall include a statement that the movant has the right to appeal within 30 days I IARDI N C.J., and ANSTL A D and PARIENTE, of the rendition of the order. The prisoner movant may concur. file a motion for rehearing of any order denying a motion under this rule within 15 days of the date of service of NA EL LS, J., concurs with an opinion. the order. The clerk of the court shall promptly serve OVERTON, Senior Justice, dissents. on the prisoner movant a copy of any order denying a motion for postconviction relief or denying a motion WELLS, I., concurring. for rehearing noting thereon the date of service by an appropriate certificate of service. I concur in the majority's opinion and in the adoption of the rule. I concur in the decision to permit Wood to proceed with (h) Habeas Corpus. An application for writ of habeas his writ because he was never "in custody" and therefore was corpus on behalf of a prisoner who is authorized to apply never technically covered by the express language of rule for relief by motion pursuant to this rule shall not be 3.850 and its two-year period. entertained if it appears that the applicant has failed to apply for relief, by motion, to the court that sentenced I write to make clear that it is my understanding that the the applicant or that the court has denied the applicant only defendants who would have a viable claim relief, unless it also appears that the remedy by motion and come within this opinion are those defendants who were is inadequate or ineffective to test the legality of the either never in custody or who were in custody for less than applicant's detention. two years and who have not previously filed a petition. This amendment shall become effective immediately and the procedure for obtaining postconviction relief from a criminal Parallel Citations judgment or sentence shall be by motion as prescribed in the Florida Rules of Criminal Procedure. Because of the 24 Fla. L. Weekly S240 substantial change to rule 3.850 by this Court, we direct that Footnotes Florida Rule of Criminal Procedure 3.X50 provides in relevant part: (a) Grounds for Motion. A prisoner in custody under sentence of a court established by the laws of Florida claiming the right to be released on the ground that the judgment was entered or that the sentence was imposed in violation of the Constitution or laws of the United States or of the State of Florida, that the court was without jurisdiction to enter the judgment or to impose the sentence, that the sentence was in excess of the maximum authorized by law, that the plea was given involuntarily, or that the judgment or sentence is otherwise subject to collateral attack may move, in the court that entered the judgment or imposed the sentence, to vacate, set aside, or correct the judgment or sentence. (b) . A motion to vacate a sentence that exceeds the limits provided by law may be tiled at any NM. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case or more than I year after the judgment and sentence become final in a capital case in which a death sentence has been imposed unless it alleges that (I) 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, or (2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively. 'Nest iawNext C) 2011 Thomson Reuters. No claim to original U.S. Government Works. EFTA_R1_00019191 EFTA01735463 Wood v. State, 750 So.2d 592 (1999) 24 Re. L. Weekly S240 2 The "conclusiveness test" for newly discovered evidence described in Hallman has since been superseded. See Ames I Stan% 591 So.2d 911, 915 (Fla 1991) (- Thus, we hold that henceforth, in order to provide relief, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial."). 3 The other issues Wood raises are beyond the scope of the certified conflict and we decline to address them. End of Document C0 2011 Thomson Reuters. No claim to original U.S. Government Works ,;c'estiaviNext C) 2011 Thomson Reuters. No claim to original U.S. Government Works. EFTA_R1_00019192 EFTA01735464