125 So. 3d 932
Fla. Dist. Ct. App.2013Background
- Appellant sought post-conviction relief via a second pro se motion under Florida Rules of Criminal Procedure 3.850, which was summary denied.
- Appellant was convicted in two cases after a plea; one case and the most serious charge in the other were dismissed; he pled guilty to two counts of lewd or lascivious molestation and one count of lewd or lascivious exhibition.
- Sentence imposed: ten years’ prison and twenty years’ sex offender probation on one count, with concurrent twenty and fifteen-year terms on the remaining counts.
- A probation condition barred internet access until a risk assessment was completed, reflecting language from 948.30(l)(h) Florida Statutes (2005) and applying to offenses occurring after July 1, 2005.
- The offenses underlying the plea occurred between July 2004 and August 2005; appellant did not file a direct appeal after sentencing.
- The 2012 motion alleged newly discovered evidence via probation orders (January 2, 2007) restricting internet access and claimed mutual mistake based on counsel’s alleged assurances; the motion argued the evidence post-dates final judgments but falls outside the two-year deadline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 3.850 motion was timely under the two-year limit | Appellant | State | Untimely; Parks rule applies |
| Whether the 3.850(b)(1) newly discovered-evidence exception can salvage untimeliness | Appellant | State | Not satisfied; evidence not newly discovered or probable acquittal |
Key Cases Cited
- Parks v. State, 101 So.3d 1265 (Fla. 4th DCA 2012) (two-year time limit; exception requires newly discovered evidence)
- State v. Corner, 84 So.3d 358 (Fla. 4th DCA 2012) (3.850(b)(1) exception telegraphed)
- Jones v. State, 709 So.2d 512 (Fla. 1998) (newly discovered evidence standard)
- Wainwright v. State, 983 So.2d 635 (Fla. 4th DCA 2008) (plea-era fact not newly discovered)
- Foss v. State, 24 So.3d 1275 (Fla. 5th DCA 2009) (scoresheet error not newly discovered for 3.850(b) exception)
- Dwyer v. State, 981 So.2d 606 (Fla. 4th DCA 2008) (conditional release not a new fact)