Mitchell v. State

818 So. 2d 696, 2002 WL 1301513

Opinion

818 So.2d 696 (2002)

Moses Shannon MITCHELL, Appellant,
v.
STATE of Florida, Appellee.

No. 5D02-1273.

District Court of Appeal of Florida, Fifth District.

June 14, 2002.

Moses Shannon Mitchell, Wewahitchka, pro se.

No Appearance for Appellee.

SHARP, W., J.

Mitchell appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. He claims the trial court erred on July 16, 1999, by accepting his guilty plea to strong armed robbery without a factual basis having been established for his plea. We affirm.

The trial court denied the motion as untimely. We think the trial court reached the correct result, although not for that reason. A rule 3.850 motion is timely if filed within two years and thirty days of a judgment and sentence when there has been no direct appeal, as occurred in this case. See Ayo v. State, 708 So.2d 692 (Fla. 5th DCA 1998). Mitchell was sentenced on July 16, 1999, and this motion was filed on August 8, 2001.

However, Mitchell filed a prior motion pursuant to rule 3.800, in which he asserted that his sentence exceeded the statutory maximum and there was no factual basis for his plea. This motion was denied on the merits and the denial was affirmed on appeal. See Mitchell v. State, 755 So.2d 135 (Fla. 5th DCA 2000). The motion in this proceeding is therefore successive and improper. See Demps v. State, 770 So.2d 745 (Fla. 3d DCA 2000).

AFFIRMED.

HARRIS and GRIFFIN, JJ., concur.