Valdivieso v. State

90 So. 3d 376, 2012 WL 2579592, 2012 Fla. App. LEXIS 10801

Opinion

On Appellant’s Motion for Rehearing and Clarification

PER CURIAM.

Defendant files a motion for clarification and rehearing after this Court per curiam affirmed the denial of his motion for post-conviction relief filed under Florida Rule of Criminal Procedure 3.850.

We grant his motion and withdraw the previous opinion. Upon reconsideration of the record, we find that Defendant’s August 23, 2010 motion for postconviction relief was untimely. State v. Green, 944 So.2d 208 (Fla.2006). Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively to this 2004 plea. See Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011) (citing Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011)); Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011).

Affirmed.

STEVENSON, TAYLOR and LEVINE, JJ., concur.