Beruflich Dokumente
Kultur Dokumente
STATE OF FLORIDA,
Plaintiff/Respondent,
vs.
Case No.:
Division:
1989 CF 002693 A
B
Defendant/Petitioner.
THIS CAUSE is before the Court 011 Defendant's Motion for Postconviction Relief, filed
July 24, 2007. After due consideration of the instant motio11, record, and relevant legal authority,
the Court finds that Defendant is not entitled to relief.
On November 16, 1989, a jury found Defendant guilty of two counts of Sexual Battery, two
counts of Burglary of Dwelling, and one count of Petit Theft. 1 The Court sentenced Defendant to
15 years, each count concurrent on the counts ofburglary with credit for 204 days. For the counts
of Sexual Battery, Defendant was sentenced to life iInprisonn1ent on each COUl1t, concurrent, with
credit for 204 days.2 On the Petit Theft, Defendant was sentenced.to time served.3
The rules of crhninal procedure require a defendant to file a lnotion for postconviction relief
I
Page 1 of 5
within two years after the judgment and sentence under attack becOlne final. See Rule 3.850(b). A
sentence becomes final for the purposes ofrule 3.850 when direct review proceedings are concluded
and jurisdiction to entertain a Ination forpostconviction relief returns to the trial court. See generally
Jones v. State, 602 So. 2d 606 (Fla. 1st DCA 1992). Rule 3.850 recognizes only three exceptions
to the two-year time limitation. They are as follows: 1) the facts on which the claim is based were
not known to Defendant or his counsel and could not have been ascertained tlrrough due diligence,
2) the fundru.nental constitutional right asserted was not established within the period provided for
and has been held to apply retroactively, and 3) Defendant retained counsel to file a 3.850 motion
and counsel, through neglect, failed to do so. See Fla. R. Crhn. Pro. 3.850.
The rules of criminal procedure further state that "A second or successive Inotion may be
dismissed'ifthe judge finds that ... the failure of the Inovant or the attomeyto assert those grounds
in a prior lnotion constituted an abuse oftlle procedure governed by these rules." Fla. R. Crim. Pro.
3.850(f). Postconviction3.850motionsmaybe "barred as successive where the 'defendant's current
rule 3.850 Inotion is one that could have or should have been raised in his first rule 3.850 motion. ",
Franklin v. State, 923 So. 2d 1199 (Fla. 3rdDCA2006) quoting Scrrunblingv. State, 919 So. 2d 671
(Fla. 5th DCA 2006). See also Moore v. State, 820 So. 2d 199 (Fla. 2002).
In the inst811t case, Defendrult was sentenced on December 12, 1989. The First District Court
of Appeal affinned Defelldru.lt's judgtnent and sentence 011 June 10, 1991, giving Defendant until
apprOXi111ately June of 1993 to file a motion for postcollviction relief pursuant to rule 3.850. Such
a motion was filed in October of 1992. It was dismissed, and Defendant was allowed to refile. He
did so in March of 1993. That lnotiol1 was denied in January of 1996.4
See Attachment 3.
Page 2 of 5
Consequently, at this time, the Court may address Defendant's claims only if they fall into
the enumerated exceptions to the two-year time limitation and could not have been raised in
Defendant's original 3.850 motion. Defendant's clahn under Roper could not have been raised in
his original 3.850 motion because his Inotion was filed many years before the United States'
Supreme Court ruled 011 Roper, thereby escaping dismissal based on successiveness. However, the
Court finds that the claim raised in the instant motion, based 011 Roper, does not fit into the limited
category of claims allowed to be brought after the expiration of the two-year filing period.
In the instant 1110tion, Defendant argues that the United States' Supreme Court's decision in
Roper should disallow the sentencing of juvenile offenders to life in prison without parole.
Defendant cOlnlnitted his crhne when he was thirtee11 years of age, and the Court sentenced him to
"die in prison." Defendant argues that in light of Roper, his sentence should be mitigated.
As mentioned above, the three exceptiollS to the two-year lnnitation on a postconviction
3.850 lnotioll are 1) the facts on which the claim is based were not known to Defendant or his
counsel and could not have been ascertained through due diligence, 2) the fundamental constitutional
right asserted was not established within the period provided for and has been held to apply
retroactively, and 3) Defelldantretained counsel to file a3.8501notion and counsel, through neglect,
failed to do so. See Fla. R. eriln. Pro. 3.850.
Because new law cannot qualify as 11ewly discovered evidence, see Regan v. State, 787 So.
2d 265, 267 (Fla. 1st DCA 2001), and Defendant has given the Court 110 reason to believe that his
counsel neglected to file a 3.850, the only exception under which Defendant's claim could fall is the
second: the law has established a new, fundamental, retroactive constitutional right. Defendant
argues in his Inotioll that "after the United States Suprelne Court's decision in Roper it is
Page 3 of 5
argues in his Inotion that "after the United States Supreme Court's decision in Roper it is
unconstitutional to sentence a thirteenwyear-old child to die in prison." However, Roper has
established no such constitutional right. Rather, Roper establishe40nly one new constitutional right,
the right for ajuvenile not to be given the death penalty. See Melton v. State, 949 So. 2d 994, 1020
(Fla. 2006) (noting that "[i]n Roper, the United States Supreme Court held that '[t]he Eighth and
Fourteenth Amendments forbid ilnposition of the death penalty on offenders who were under the age
ofl8 when their crimes were committed.' Roper, 543 U.S. at 578. The Court provided a bright line
rule for the imposition of the death penalty itself, but nowhere did the Suprelne Court extend this
rule" beyond that bright line). Because Roper did not establish the constitutional right Defendant
alleges, Defendant does not have a valid 90nstitutional clailn. Hence, Defendant's claim does 110t
fit into any exception to the time lilnits in rule 3.850 and must be dismissed as procedurally barred.
Even if Defendant's lnotion were properly before the Court, Defendant's argument is
Ineritless. Although Defendant's lnotion includes lnany references to sociological sources, counsel
has not provided the Court any legal authority for Defendant's proposed reading of Roper.
Furthennore, the Court can find no controlling legal authority supporting Defendant's argument.
Rather, this Court has found that the Supreme Court of Florida has repeatedly declined to extend the
implications of Roper beyond its clear, bright-line rule. See Grossman v. State, 932 So. 2d 192 (Fla.
2006) (declining to extend Roper to a nineteen-year-old offender) and I(earse v. State, 2007 Fla.
LEXIS 1534 (Fla. 2007) (declining to extend Roper to an offender who was eighteen years and three
months old). See also England v. State) 940 So. 2d 389 (Fla. 2006) (declining to extend Roper to
defeat death penalty that used juvenile offenses as aggravators). Additionally, the Supreme Court
of Florida has made clear that a sentence of life impris011111ent without parole is a perfectly
Page 4 of 5
acceptable penalty under Roper. See Ramirez v. State, 909 So. 2d 862 (FIa 2005) citing section
775.082(1) & (2), Florida Statutes (Supp. 1994). Consequel1tly, the Court can find no grounds for
. Initigating Defendant's sentence.
Accordingly, it is hereby ORDERED and ADJUDGED that:
1.
PREJUDICE; a..nd
2. Defendant has thirty (30) days frOln the date of this order to file a notice of appeal, should
he so choose.
D~
this
,I
'PI
FRANK L. BELL
CIRCUIT JUDGE
Copies to:
- Joe Sullivan, DC # 118643, Columbia Correctional Institution> 216 S.E. Corrections Way, Lake City, FL 32025
- Sonya Rudenstine, Esq., 1221 N.E. 3rd Street, Gainesville, FL 32601
I-
Equal Justice Initiative of Alabama, Attll: Bryan Stevenson, Esq., Randall Susskind, Esq., and Rebecca Kiley> Esq.,
122 Commerce Street, Montgomery, AL 36104
Page 5 of 5
No. _ _ __
v.
STATE OF FLORIDA, Respondent.
CERTIFICATE OF SERVICE
I, Bryan A. Stevenson, a member of the Bar of this Court, declare that on
December 4,2008, as required by Supreme Court Rule 29, I served the enclosed Motion
for Leave to Proceed In Forma Pauperis and Petition for Writ of Certiorari on counsel
for the State of Florida in the proceedings below and on the Florida Attorney General,
by depositing envelopes containing the above documents in the United States mail with
first-class postage prepaid and properly addressed to:
Joshua Heller
Office of the Attorney General
PL-01, The Capitol
Tallahassee, FL 32399-1050
Bill McCollum
Attorney General, State of Florida
PL-01, The Capitol
Tallahassee, FL 32399-1050
R~llY submitted,
~6v
December 4, 2008
No. _ _ __
forma pauperis. Mr. Sullivan further states in the attached affidavit that he is indigent and unable to pay court costs and fees.
Respectfully submitted,
~&::
BRY N A. STEVENSON
No.-....-""""'"--'_ __
PROVIDED TO
DEC 012008
f'..
FOR MAILING ~>
IN THE
INMATE INITIALS
v.
STATE OF FLORIDA, Respondent.
I, Joe Harris Sullivan, declare that I am the petitioner in the above entitled case;
that in support of the motion to proceed without being required to prepay fees, costs,
or give security therefore, I state that because of my own poverty I am unable to pay
the costs of said proceedings or to give security therefore; and that I believe I am
entitled to redress.
1.
incarceration in 1989.
2.
3.
4.
support, and I do not expect any major changes to my monthly income or assets in the
next twelve months.
5.
administrative assistant any money for services in connection with this case.
6.
I am not married.
32583~7914.
(date).
Page 2 of, 2
11~24/2008
PAGE
4870949
12:02
FLORIDA
DEPARTIv1ENT of
CORRECTIONS
01
Governor
CBARLIE CRIST
Secr~tary
WALT.ERA.McNElL
http://www.dc.state.fl.us
TO:
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COMPANY;
PATE:
FA:k:NUMBERi
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PHONE NUMB
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