Summary
affirming denial of claim that Porter is retroactive and requires reconsideration of previously denied Brady and ineffective assistance claims
Summary of this case from Byrd v. StateOpinion
No. SC11–817.
2012-05-25
Bryan Fredrick JENNINGS, Appellant(s) v. STATE of Florida, Appellee(s).
Bryan Fredrick Jennings, a prisoner under sentence of death, appeals the circuit court's order denying a successive motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), of the Florida Constitution.
On appeal, Jennings raises three claims: (1) the circuit court erred in denying his successive postconviction motion, which was based on Porter v. McCollum, 130 S.Ct. 447 (2009); (2) the circuit court erred in denying his request to amend the successive postconviction motion in order to include new claims, which included claims premised on an affidavit signed by Clarence Muszynski and claims with respect to Florida's lethal injection protocol; and (3) an evidentiary hearing is warranted on the claims arising from the Muszynski affidavit.
We affirm the denial of Jennings' claim that Porter v. McCollum, 130 S.Ct. 447 (2009), is retroactive and requires reconsideration of Jennings' previously denied ineffective assistance of counsel and Brady claims. See Walton v. State, 77 So.3d 639 (Fla.2011).
With respect to the motion to amend, we recognize that Florida Rule of Criminal Procedure 3.851 is silent as to whether a defendant may amend a postconviction motion under the circumstances presented here, where no evidentiary hearing was held and an order summarily denying the motion was entered, but the case was not yet final because of a pending motion for rehearing. We conclude that the circuit court did not abuse its discretion in denying the motion to amend in this case. We also decline to accept Jennings' invitation to decide whether an evidentiary hearing should be held on the claims arising from the affidavit.
Accordingly, we affirm the circuit court's order denying Jennings' motion to amend the successive motion for postconviction relief to raise claims based on newly discovered evidence. However, Jennings shall have thirty (30) days from the date of this order in which he may file a successive postconviction motion in the circuit court raising claims asserted in the motion to amend, nunc pro tunc to February 28, 2011, the date his motion to amend was filed in the circuit court.