513 So. 2d 1077 | Fla. Dist. Ct. App. | 1987
Rehearing
ON MOTION FOR REHEARING
John McConnell appeals from the summary denial of his motion for postconviction relief. We affirmed July 31, 1987. McConnell’s motion for rehearing followed.
The history of confusion that marks this case began when, sometime during December 1986, the circuit court received a pleading purported to be McConnell’s motion to vacate his convictions and sentences for robbery, burglary, kidnapping, and theft. Four separate theories of relief were advanced in this motion, dealing with the propriety of the sentence, the voluntariness of McConnell’s plea, and the adequacy of the assistance provided by trial counsel.
McConnell then petitioned the circuit court for rehearing, claiming that the court had erred in refusing to permit the filing of a belated “memorandum of law,” which McConnell wished to accompany the motion but which he was unable to prepare before the January 1, 1987, deadline.
On April 28, 1987, apparently as an addendum to the motion for rehearing, McConnell submitted a second motion for postconviction relief containing all eight grounds for relief. On this same date the circuit court entered an order styled “order denying motion for postconviction relief” but addressing, at least in part, the motion for rehearing. The court found that McConnell had “attempted to file an additional motion for postconviction relief under the guise of replacing a copy of the original,” thereby perpetrating a fraud upon the court. McConnell appealed from this order, and finding nothing in the record to suggest the court had incorrectly perceived the situation, we affirmed.
Technically speaking, McConnell’s motion for rehearing is inappropriate. If anyone has misconstrued the facts of this case, it is not we. As an appellate court our function is not to gather evidence or to try cases on the facts. Our original decision was. predicated upon the record before us, which contained the “draft” motion, the order of March 25, the two attempts to submit the “finalized” motion, and the order of April 28. Futhermore, the information regarding the notary’s mishap appears to have been conveyed to the trial court, if at all, in a letter of May 13, 1987, or after the final order denying postconviction relief. Shortly thereafter McConnell divested the circuit court of jurisdiction by filing his notice of appeal. We know of this letter only because McConnell has appended a xerox copy to his motion in this court; it is not part of the record on appeal.
Even so, we cannot say that the scenario advanced by McConnell is unbelievable. As a result, we considered affirming the order of the trial court without prejudice to McConnell to refile the “final” motion with an explanation why he should not be penalized for his failure to do so at an earlier date. However, under the circumstances of this case, such a gesture would be a useless act. Even if the trial court determined that McConnell’s excuse was true and valid, and considered the second motion on its merits, that motion would properly be denied without a hearing because it too is legally insufficient. While there is some overlap between the two motions, the second contains, an additional example of what McConnell considered ineffective assistance of counsel. McConnell also complained that the court accepted his plea without any factual basis and that section 947.16, Florida Statutes (1979), by which the court retained jurisdiction over a portion of the sentence for purposes of disapproving parole, is unconstitutional. None of these claims for relief is valid. In fact, some of the claims appear to have been raised and ruled upon even prior to sentencing, in which case McConnell should have presented them to this court on direct appeal.
Accordingly we deny the motion for rehearing.
CAMPBELL, A.C.J., and SCHOONOVER and HALL, JJ.’, concur.
. The motion actually contained five points, but one was repetitive.
. McConnell is attacking a conviction which became final in 1982. McConnell v. State, 413 So.2d 888 (Fla. 2d DCA 1982).
. We find no abuse of discretion in this decision to disallow piecemeal litigation by McConnell. Cf. Ferro v. State, 510 So.2d 339 (Fla. 2d DCA 1987).
.McConnell later submitted to this court a copy of a letter from the trial judge’s "judicial assistant" to McConnell, dated February 9, 1987 and asserting that no 3.850 motion had been received either by the clerk of the circuit court or the state attorney.
. McConnell did attempt to supplement the record on appeal with these documents, along with newspaper clippings and other items not relevant to the appeal. We cannot accept such ex parte submissions of unverified and unfiled exhibits.
Lead Opinion
Affirmed.