final until disposition of timely filed motion for rehearing.
of Original Jurisdiction - Habeas Corpus. Lower Tribunal No.
Beiro, in proper person.
Moody, Attorney General, and Jonathan Tanoos (Tampa),
Assistant Attorney General, for respondent.
EMAS, C.J., and FERNANDEZ and LOGUE, JJ.
2012, Maykel Beiro was convicted of and sentenced for
second-degree murder and aggravated battery. His convictions
and sentences were affirmed by this court, and our mandate
issued on May 17, 2013. See Beiro v. State, 140
So.3d 590 (Fla. 3d DCA 2013).
Beiro filed several motions for postconviction relief,
including a 2013 petition for writ of habeas corpus alleging
ineffective assistance of appellate counsel. That petition
was denied, see Beiro v. State, 177 So.3d 264 (Fla.
3d DCA 2014), and his subsequent postconviction motions,
filed pursuant to Florida Rule of Criminal Procedure 3.850,
were denied by the trial court.
December 7, 2018, Beiro filed the instant petition, once
again alleging ineffective assistance of appellate counsel,
and raising a claim not asserted in the prior petition.
Although Beiro acknowledges that the instant petition is both
successive and untimely, he contends that these procedural
bars should be relaxed to correct a manifest injustice. Beiro
is incorrect. The mere incantation of the words
"manifest injustice" does not make it so. Beiro has
failed to allege any facts-nor can he-to justify invoking the
extremely limited concept of manifest injustice to excuse a
procedural bar and allow us to review the merits of his
instant claim. See, e.g., Cuffy v. State,
190 So.3d 86, 87 (Fla. 4th DCA 2015) (noting: "The term
'manifest injustice,' which has been acknowledged as
an exception to procedural bars to postconviction claims in
only the rarest and most exceptional of situations, now is
abused widely by postconviction litigants"); Hall v.
State, 94 So.3d 655 (Fla. 1st DCA 2012); Stephens v.
State, 974 So.2d 455, 457 (Fla. 2d DCA 2008). There is
little doubt that every defendant believes they will suffer a
"manifest injustice" if their postconviction claim
is deemed foreclosed by the passage of time. However, a
defendant does not have an unlimited right to continue to
litigate (and relitigate) the validity of their conviction,
and such a limited right must be balanced against the
State's competing and substantial interest in the
finality of judgments in criminal cases. As the Florida
Supreme Court observed in Witt v. State, 387 So.2d
922, 925 (Fla. 1980):
The importance of finality in any justice system, including
the criminal justice system, cannot be understated. It has
long been recognized that, for several reasons, litigation
must, at some point, come to an end. In terms of the
availability of judicial resources, cases must eventually
become final simply to allow effective appellate review of
other cases. There is no evidence that subsequent collateral
review is generally better than contemporaneous appellate
review for ensuring that a conviction or sentence is just.
Moreover, an absence of finality casts a cloud of
tentativeness over the criminal justice system, benefitting
neither the person convicted nor society as a whole.
that proper balance, the Florida Supreme Court promulgated
Florida Rule of Appellate Procedure 9.141(d)(5) which
Time Limits. A petition alleging ineffective assistance of
appellate counsel on direct review shall not be filed more
than 2 years after the judgment and sentence become final on
direct review unless it alleges under oath with a specific
factual basis that the petitioner was affirmatively misled
about the results of the appeal by counsel. In no case shall
a petition alleging ineffective assistance of appellate
counsel on direct review be filed more than 4 years after the
judgment and sentence become final on direct review.
filed this successive petition more than four years after his
judgment and sentence became final on direct review,
there are no circumstances to warrant application of the
narrow "manifest ...