Opinion
No. 91-3196.
June 17, 1992.
Appeal from the Circuit Court, Duval County, R. Hudson Olliff, J.
Terry Jerome Wilson, pro se.
Robert A. Butterworth, Atty. Gen., Gypsy Bailey, Asst. Atty. Gen., for appellee.
We affirm without comment the trial court's summary denial of Wilson's Rule 3.850 motion for post-conviction relief. We note, however, that Wilson, having availed himself of the opportunity to file a brief in this 3.850 appeal, has raised, for the first time, a new contention. Wilson, who was sentenced as a habitual violent felony offender to a term of 30 years with a ten-year minimum mandatory term for unarmed robbery, a second degree felony, and a consecutive term of 20 years with a fifteen-year minimum mandatory term for burglary with assault, a first degree felony, argues that the trial court erred in imposing consecutive minimum mandatory sentences for offenses that arose out of the same criminal episode. We take note that, during the pendency of this appeal, the supreme court has decided Daniels v. State, 595 So.2d 952 (Fla. 1992), limiting the trial court's ability to impose consecutive minimum mandatory sentences upon a defendant sentenced as a habitual violent felony offender for crimes arising from a single criminal episode. Accordingly, our affirmance is without prejudice to appellant's right to file a new motion addressing his minimum mandatory sentences.
See Ketion v. State, 548 So.2d 778 (Fla. 1st DCA 1989).
We do not address the question of whether a new motion, if filed, would meet the standard for a "second" Rule 3.850 motion. See Aikens v. State, 488 So.2d 543 (Fla. 1st DCA 1986); Dowdell v. State, 500 So.2d 594 (Fla. 1st DCA 1986), en banc.
WIGGINTON, J., concurs.
ERVIN, J., concurs with written opinion.
I concur in affirming the trial court's summary denial of appellant's 3.850 motion because the allegations contained therein were facially insufficient and/or unsupported by the record.
By affirming the order without prejudice to appellant's right to file a new motion addressing the minimum mandatory sentence issue, we do no violence to that portion of Florida Rule of Criminal Procedure 3.850 precluding the filing of a second or successive motion based on the movant's failure to assert such grounds in a prior motion. Obviously, the filing of a second motion based upon a change in the law occurring during the pendency of an appeal, such as the Florida Supreme Court's decision in Daniels v. State, 595 So.2d 952 (Fla. 1992), cannot be considered an abuse of procedure. Indeed, the Florida Supreme Court has also recently stated that any decision of an appellate court announcing a new rule of law, or merely applying an established rule of law to a different or new factual situation must be given retroactive application by the courts of this state in every case pending on direct review. Smith v. State, 598 So.2d 1063, (Fla. 1992). See also Cook v. State, 553 So.2d 1292 (Fla. 1st DCA 1989).
In that appellant obviously did not have a clearly recognized opportunity to assert the violation of the Daniels rule at the time his 3.850 motion was pending below, he cannot be considered barred from seeking relief on such ground in any later motion filed by him.