Wright v. State

705 So. 2d 619, 1998 Fla. App. LEXIS 127, 1998 WL 97789

Opinion

PER CURIAM.

Manuel C. Wright appeals an order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm this order without prejudice to Mr. Wright’s option to file a timely petition alleging ineffective assistance of appellate counsel. See Fla. RApp. P. 9.140(j). We affirm the trial court’s order because the motion which is the subject of this appeal was successive and untimely.

We observe that Mr. Wright still has the ability to file a petition in this court. A review of his previously filed motions for postconviction relief suggests that such a petition may be well taken. Mr. Wright received three consecutive ten-year terms of incarceration as a habitual violent offender in November 1992. On direct appeal, his specially appointed public defender filed a brief in February 1994, but failed to argue that two of these three convictions arose out of one episode. This issue was not raised, even though the supreme court’s decision in Hale v. State, 630 So.2d 521 (Fla.1993), cert. denied, 513 U.S. 909, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994), was issued in October 1993.¹ The record currently before this court strongly suggests that the convictions for battery on a law enforcement officer and resisting arrest with violence occurred in one criminal episode and that the two sentences for those convictions should have been imposed concurrently.

Affirmed.

DANAHY, A.C.J., and ALTENBERND and NORTHCUTT, JJ., concur.

1 . Rehearing was denied in Hale on February 9, 1994.