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Mendoza v. State

District Court of Appeal of Florida, Fourth District.
Jul 18, 2012
93 So. 3d 458 (Fla. Dist. Ct. App. 2012)

Opinion

No. 4D11–3259.

2012-07-18

Santiago MENDOZA, Appellant, v. STATE of Florida, Appellee.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; William L. Roby, Judge; L.T. Case No. 431997CF000960A. Santiago Mendoza, Orlando, pro se. No appearance required for appellee.


Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; William L. Roby, Judge; L.T. Case No. 431997CF000960A.
Santiago Mendoza, Orlando, pro se. No appearance required for appellee.
PER CURIAM.

We affirm the circuit court's denial of the defendant's motion for postconviction relief primarily seeking to apply retroactively State v. Montgomery, 39 So.3d 252, 257–58 (Fla.2010) (standard jury instruction on manslaughter, which required the jury to find that the defendant intended to kill the victim, constituted fundamental error). We already have held that Montgomery “does not apply retroactively to convictions which were final before our supreme court issued that decision.” Ross v. State, 82 So.3d 975, 976 (Fla. 4th DCA 2011). Our sister courts have held likewise. Harricharan v. State, 59 So.3d 1162, 1163 (Fla. 5th DCA 2011), rev. denied,92 So.3d 213 (Fla.2012) (table); Rozzelle v. State, 29 So.3d 1141, 1142 (Fla. 1st DCA 2009), rev. denied,92 So.3d 214 (Fla.2012) (table). Further, Montgomery does not apply substantively here because the defendant was convicted of first-degree murder, an offense two steps removed from the lesser-included offense of voluntary manslaughter. Montgomery, 39 So.3d at 259;Joseph v. State, 42 So.3d 323, 324–25 (Fla. 4th DCA 2010).

The circuit court did not address appellant's second claim which alleged ineffective assistance of counsel. This claim is procedurally barred as untimely and successive. Fla.Crim. P. 3.850(b); Fla. R.Crim. P. 3.850(f).

Affirmed.

POLEN, DAMOORGIAN and GERBER, JJ., concur.


Summaries of

Mendoza v. State

District Court of Appeal of Florida, Fourth District.
Jul 18, 2012
93 So. 3d 458 (Fla. Dist. Ct. App. 2012)
Case details for

Mendoza v. State

Case Details

Full title:Santiago MENDOZA, Appellant, v. STATE of Florida, Appellee.

Court:District Court of Appeal of Florida, Fourth District.

Date published: Jul 18, 2012

Citations

93 So. 3d 458 (Fla. Dist. Ct. App. 2012)

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