Anthony v. State, 2D99-3599.

• Decision Date: 26 January 2000
• Docket Number: No. 2D99-3599.,2D99-3599.
• Citation: 762 So.2d 528
• Parties: James Lee ANTHONY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

762 So.2d 528

James Lee ANTHONY, Appellant,
v.
STATE of Florida, Appellee

No. 2D99-3599.

District Court of Appeal of Florida, Second District.

January 26, 2000.

Rehearing Denied March 16, 2000.

762 So.2d 529

PER CURIAM

James Lee Anthony appeals the summary dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Anthony contends that he was erroneously informed by defense counsel, the prosecutor, and the trial court that the fifteen-year minimum mandatory sentence under section 775.084(b)Florida Statutes (1990), was mandatory rather than permissive. He also asserts that his sentence is illegal because the trial court sentenced him under the assumption that the statute was mandatory rather than permissive. The trial court dismissed Anthony's motion as untimely and as successive of several previously filed postconviction motions. We affirm based on our conclusion that Anthony's motion was untimely. We do not reach the issue of whether it was also barred as successive.

Anthony concedes that his motion was filed more than two years after his convictions on August 24, 1990, became final. He contends, however, that the arguments raised in his motion were not supported by case law until the supreme court decided State v. Hudson, 698 So.2d 831, 833 (Fla. 1997) and that he filed his motion within two years from the date of that decision.

Rule 3.850(b)(2) provides an exception to the two-year time limitation for filing postconviction motions where a "fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively." See also Dixon v. State, 730 So.2d 265, 268-69 (Fla.1999) (holding, in context of rule 3.850 motion seeking retroactive benefit of Hale v. State, 630 So.2d 521 (Fla.1993), that "we consider it reasonable to calculate the two-year time period for eligible defendants to file their claims from the time our decision announcing retroactivity becomes final"). The supreme court has not decided the issue of whether Hudson applies retroactively.

In Witt v. State, 387 So.2d 922, 929 (Fla.1980), the supreme court emphasized that "only major constitutional changes of law" will be given retroactive effect so as to be cognizable under rule 3.850(b)(2). It gave as examples of such "major constitutional changes," Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), in which the court first announced that...