Boudreaux v. State

Full title: KENNETH BOUDREAUX, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fifth District

Date published: Apr 11, 1997

693 So. 2d 66 (Fla. Dist. Ct. App. 1997)

Opinion

Case No. 96-3505

Opinion filed April 11, 1997

3.850 Appeal from the Circuit Court for Marion County, Carven D. Angel, Judge.

Kenneth Boudreaux, Starke, pro se.

No Appearance for Appellee.

SHARP, W., J.

Boudreaux appeals from a summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. He was convicted in 1985 of one count of armed burglary of a dwelling, one count of robbery with a deadly weapon and one count of attempted first degree murder. His direct appeal was per curiam affirmed,¹ and the trial court's denial of his collateral attack on his convictions and sentences was summarily affirmed in 1988.²

1 See Boudreaux v. State, 484 So.2d 27 (Fla. 5th DCA 1986).

2 See Boudreaux v. State, 526 So.2d 694 (Fla. 5th DCA 1988).

The issue Boudreaux now seeks to raise is that he is entitled to either retrial on the attempted first degree murder count or to have his sentence vacated pursuant to State v. Gray, 654 So.2d 552 (Fla. 1995). This case is identical to Motes v. State, 21 Fla. L. Weekly D2644 (Fla. 5th DCA Dec. 13, 1996). We held that Gray had no retroactive application to a collateral attack on a criminal conviction which was final when Gray was rendered. However, as we did in that case, we certify to the Florida Supreme Court the following question:³

3 Fla. R. App. P. 9.030(2)(A)(vi).

SHOULD THE RULE ANNOUNCED IN GRAY BE APPLIED RETROACTIVELY TO CASES WHICH WERE FINAL WHEN THAT DECISION WAS RENDERED, BUT FOR WHICH TIMELY COLLATERAL RELIEF IS SOUGHT?

AFFIRMED.

DAUKSCH and THOMPSON, JJ., concur.