Opinion
No. SC11–809.
2012-05-25
Richard Earl SHERE, Jr., Appellant(s) v. STATE of Florida, Appellee(s).
Richard Earl Shere, Jr., a prisoner under sentence of death, appeals the denial of his successive motion for postconviction relief filed pursuant to rule 3.851, Florida Rules of Criminal Procedure. While Shere raised numerous arguments in his successive motion, each argument was ultimately related to one of two basic claims. First, Shere claimed that the indictment issued against him in 1987 was defective. Arguments related to this claim were (a) that Shere was denied the right to a speedy trial because he was never properly charged with a crime, (b) that the trial court lacked subject matter jurisdiction due to the defective indictment, and (c) that Shere's trial counsel rendered ineffective assistance by not challenging the indictment. Secondly, Shere claimed that the jury was improperly instructed that he could be convicted as a principal to first-degree murder, when the indictment did not allege a principal theory of guilt. Arguments related to this claim were (a) that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by not responding to a request for a bill of particulars filed by the defense before trial seeking clarification of the State's theory of the case, and (b) that Shere is “actually innocent” of the crime charged in the indictment because he was convicted as a principal to first-degree murder.
We agree with the trial court that Shere's successive motion is time-barred under the one-year filing deadline imposed by rule 3.851(d)(1) (“Any motion to vacate judgment of conviction and sentence of death shall be filed by the prisoner within 1 year after the judgment and sentence become final.”). As the trial court observed, Shere's conviction and death sentence became final on or around November 4, 1991. Furthermore, we agree that Shere's claims do not fall within the newly discovered evidence exception to rule 3 .851(d)(1). Pursuant to that exception, a claim may be filed beyond the one-year deadline if “the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence.” Rule 3.851(d)(2)(A), Fla. R.Crim. P. In this case, both the indictment and the jury instructions were plainly known to Shere and his counsel at the time of Shere's jury trial in 1989.
Accordingly, the trial court's denial of Shere's successive motion for postconviction relief is affirmed.