David Moore, Jr. v. State

152 So. 3d 644, 2014 Fla. App. LEXIS 16805, 2014 WL 5149183

Opinion

PER CURIAM.

We affirm the denial of appellant’s successive and untimely motion for postcon-viction relief. Appellant raised the same claim regarding misadvice of counsel regarding his plea in Moore v. State, 114 So.3d 291 (Fla. 4th DCA 2013). He claims that because of Alcorn v. State, 121 So.3d 419 (Fla.2013), decided after Moore, he is entitled to re-raise this same claim. However, Florida Rule of Criminal Procedure 3.850(b)(3) permits a claim to be raised beyond the two-year time limitation only “where the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively, and the claim is made within 2 years of the date of the mandate of the decision announcing the retroactivity.” Neither Alcorn nor any decision since its rendition has held that it is to be applied retroactively, nor does it appear that Alcorn meets the retroactivity test announced in Witt v. State, 387 So.2d 922 (Fla.1980).

Affirmed.

DAMOORGIAN, C.J., WARNER and GERBER, JJ., concur.