final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Marianne L.
Johnson, pro se, Appellant.
Jo Bondi, Attorney General, Michael L. Schaub, Assistant
Attorney General, Tallahassee for Appellee.
challenges the postconviction court's denial of his
motion to amend his motion for postconviction relief pursuant
to Florida Rule of Criminal Procedure 3.850. Because
Appellant's new claims do not relate back to the claims
raised in his original timely filed motion, the amended
motion is time barred, and we affirm the postconviction
court's denial of his request to amend his motion. We
reject Appellant's further attempt to raise a new
argument for the first time on appeal.
entered a negotiated guilty plea to a charge of attempted
first-degree murder, and the trial court sentenced Appellant
to 29 years in state prison, with a mandatory minimum of 25
years. Appellant did not appeal, and his sentence became
final. Appellant subsequently filed a timely motion for
postconviction relief pursuant to Florida Rule of Criminal
Procedure 3.850, arguing, inter alia, that his trial counsel
was ineffective for failing to seek suppression of
Appellant's confession. The postconviction court ordered
an evidentiary hearing on the ineffective assistance ground,
and one week before the evidentiary hearing, Appellant filed
a motion to amend his postconviction motion.
pertinent ground in Appellant's initial motion alleged
that his counsel should have moved to suppress his confession
because it was given without a Miranda warning;
Appellant moved to amend the motion to assert a claim that he
may have received a Miranda warning, but because he
was intoxicated when it was given, he did not knowingly,
voluntarily, or intelligently waive his rights. The court
ruled that, because Appellant's sentence became final on
December 12, 2009, the two-year window to file claims for
postconviction relief closed in December 2011, five years
prior to Appellant's motion to amend.
standard of review for a trial court's determination
regarding a motion to amend a motion for postconviction
relief pursuant to Florida Rule of Criminal Procedure 3.850
is whether there was an abuse of discretion. Huff v.
State, 762 So.2d 476, 481 (Fla. 2000) (citing McConn
v. State, 708 So.2d 308, 310 (Fla. 2d DCA 1998)).
trial court may properly deny an amended rule 3.850 motion as
untimely when it raises new claims and is filed outside of
the two-year time period." Lanier v. State, 826
So.2d 460, 461 (Fla. 1st DCA 2002). "The two-year time
period, however, does not preclude the enlargement of issues
which were raised in a timely filed motion for postconviction
relief." Id. When an amended motion
"actually raises new issues of ineffective assistance of
counsel that were not raised in the previous motion, "
the lower court does not err in denying a motion to amend.
Huff, 762 So.2d at 481.
argues that his amendment was permitted outside the two-year
window, because the amendment related to an existing claim
that was timely filed, citing to Lanier. In
Lanier, the appellant timely filed a rule 3.850
motion, and filed an amendment more than two years after his
judgment and sentence became final. 826 So.2d at 461. The
appellant's initial motion claimed ineffective assistance
of counsel for failing to raise the issue of entrapment, and
his amendment stated that counsel knew there were witnesses
whose testimony could show police misconduct which induced
the appellant to commit the crime. Id. This court
held that, although the appellant's amendment was
untimely to the extent that it attempted to raise an
ineffective assistance claim based on a new claim of police
misconduct, it related back to the extent that the amended
motion provided new information to support the original,
timely filed claim. Id. at 461-62.
Appellant's motion to amend does not attempt to provide
new information to support his original claim, but rather
attempts to raise a new basis for ineffective assistance of
counsel. Appellant's initial claim was that counsel was
ineffective for failing to move to suppress a confession
given without a Miranda warning, while his new claim
is that he was intoxicated while the Miranda warning
was given. The additional information that Appellant had been
smoking and drinking at the time of detention does not
enlarge the original claim that the Miranda warning
was not given. Rather, it raises a new claim. Because
Appellant's amended motion was filed after ...