Delap v. State, 71261
| Court | United States State Supreme Court of Florida |
| Writing for the Court | PER CURIAM; McDONALD; BARKETT, J., concurs specially with an opinion, with which KOGAN; BARKETT; KOGAN |
| Citation | 12 Fla. L. Weekly 532,513 So.2d 1050 |
| Parties | 12 Fla. L. Weekly 532 David Ross DELAP, Appellant, v. STATE of Florida, Appellee. |
| Docket Number | No. 71261,71261 |
| Decision Date | 13 October 1987 |
Page 1050
v.
STATE of Florida, Appellee.
Gerry S. Gibson of Steel, Hector and Davis, Miami, for appellant.
Robert A. Butterworth, Atty. Gen. and Lee Rosenthal, Asst. Atty. Gen., West Palm Beach, for appellee.
PER CURIAM.
Delap appeals the denial of his second motion for postconviction relief * and seeks a stay of execution pending disposition of his appeal. The motion is procedurally barred for each of the reasons stated below:
(1) The motion was not filed by January 1, 1987, in accordance with the time limitations of Florida Rule of Criminal Procedure 3.850, and none of Delap's claims qualifies as exceptions set forth in that rule.
(2) The motion is a successive motion which constitutes an abuse of procedure. Delap's first two claims which challenge the validity of trial testimony concerning the cause of death of the victim were raised and rejected in Delap's previous motion for postconviction relief. Delap's
Page 1051
third claim, predicated upon Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), should have been raised, if at all, in Delap's first motion for postconviction relief which was filed more than six months after the United States Supreme Court's opinion in Caldwell.We, therefore, affirm the order denying postconviction relief and deny Delap's application for a stay of execution. No petition for rehearing will be entertained.
It is so ordered.
McDONALD, C.J., and OVERTON, EHRLICH, SHAW and GRIMES, JJ., concur.
BARKETT, J., concurs specially with an opinion, with which KOGAN, J., concurs.
BARKETT, Judge, specially concurring.
I concur because the merits of this appeal from the Court's denial of defendant's 3.850 motion have already been considered and denied by this Court.
KOGAN, J., concurs.
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* The Court affirmed the denial of a previous motion under Florida Rule of Criminal Procedure 3.850 in Delap v. State, 505 So.2d 1321 (Fla.1987).
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Delap v. Dugger, Nos. 88-3393
...relief on October 12, 1987. Delap again appealed to the Supreme Court of Florida, which affirmed on October 13, 1987. Delap v. State, 513 So.2d 1050 On October 12, 1987, Delap then sought a writ of habeas corpus before Judge Patricia Fawsett in the United States District Court for the Middl......
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Tower v. Phillips, No. 90-4038
...petitions if only to dismiss them on that basis. See, e.g., Johnson v. State, 536 So.2d 1009, 1010-11 (Fla.1988); Delap v. State, 513 So.2d 1050, 1050 (Fla.1987); Amazon v. State, 537 So.2d 170, 171 (Fla.Dist.Ct.App.), petition for review denied, 547 So.2d 1209 (Fla.1989). See also Fla.R.Cr......
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Williams v. Sec'y, Fla. Dep't of Corr., Case No. 3:11-cv-638-J-32TEM
...two years after the Defendant's conviction became final." Id. at 175 (citing Huff v. State, 569 So.2d 1247 (Fla. 1990), Delap v. State, 513 So.2d 1050 (Fla. 1987), and Gust v. State, 535 So.2d 642 (Fla. 1st DCA 1988)). The court furtherPage 6found that this "argument could or should have be......
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Johnson v. State, No. 72238
...the two-year limit in rejecting postconviction petitions in several cases. Demps v. State, 515 So.2d 196 (Fla.1987); Delap v. State, 513 So.2d 1050 (Fla.1987); White v. State, 511 So.2d 984 Johnson's suggestion that the rule is somehow ambiguous is utterly without merit. We also reject his ......
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Delap v. Dugger, s. 88-3393
...relief on October 12, 1987. Delap again appealed to the Supreme Court of Florida, which affirmed on October 13, 1987. Delap v. State, 513 So.2d 1050 On October 12, 1987, Delap then sought a writ of habeas corpus before Judge Patricia Fawsett in the United States District Court for the Middl......
-
Tower v. Phillips, 90-4038
...petitions if only to dismiss them on that basis. See, e.g., Johnson v. State, 536 So.2d 1009, 1010-11 (Fla.1988); Delap v. State, 513 So.2d 1050, 1050 (Fla.1987); Amazon v. State, 537 So.2d 170, 171 (Fla.Dist.Ct.App.), petition for review denied, 547 So.2d 1209 (Fla.1989). See also Fla.R.Cr......
-
Williams v. Sec'y, Fla. Dep't of Corr., Case No. 3:11-cv-638-J-32TEM
...two years after the Defendant's conviction became final." Id. at 175 (citing Huff v. State, 569 So.2d 1247 (Fla. 1990), Delap v. State, 513 So.2d 1050 (Fla. 1987), and Gust v. State, 535 So.2d 642 (Fla. 1st DCA 1988)). The court furtherPage 6found that this "argument could or should have be......
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Johnson v. State, 72238
...the two-year limit in rejecting postconviction petitions in several cases. Demps v. State, 515 So.2d 196 (Fla.1987); Delap v. State, 513 So.2d 1050 (Fla.1987); White v. State, 511 So.2d 984 Johnson's suggestion that the rule is somehow ambiguous is utterly without merit. We also reject his ......