Etlinger v. State, 88-3195
| Citation | 14 Fla. L. Weekly 539,538 So.2d 1354 |
| Decision Date | 22 February 1989 |
| Docket Number | No. 88-3195,88-3195 |
| Parties | 14 Fla. L. Weekly 539 James Michael ETLINGER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Michael Etlinger, pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
James M. Etlinger appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons stated below, we affirm in part and reverse in part.
On July 26, 1984, Etlinger pleaded guilty to multiple charges and, pursuant to a negotiated plea, was sentenced to thirty years' imprisonment. In case number CRC8400694, Etlinger was adjudicated guilty and sentenced for armed robbery, burglary, aggravated assault, and grand theft. He did not appeal his convictions and sentences, but on February 1, 1985, he filed a motion for postconviction relief, alleging that he was denied due process, his counsel was ineffective, and that his sentences were illegal. The trial court summarily denied the motion, which this court affirmed without an opinion on October 11, 1985, and denied rehearing on November 20, 1985.
Almost three years later, on September 27, 1988, Etlinger filed a second motion for postconviction relief. That motion is the subject of this appeal and in it he alleged (1) that his convictions and sentences in case number CRC8400694 violated the prohibition against double jeopardy, (2) that his guilty pleas were involuntary, and (3) that the trial court committed fundamental error in accepting his plea without first determining whether it was supported by a factual basis. The trial court summarily denied the motion, finding that it was an abuse of process because Etlinger did not allege any facts previously unknown to him or facts that could not have been discovered through due diligence, and that Etlinger did not raise any newly established fundamental constitutional right. The trial court also found the motion untimely because it was filed more than two years after Etlinger's judgment and sentence had become final. Etlinger timely appealed.
We agree with the trial court that Etlinger's second and third grounds for postconviction relief are procedurally barred by rule 3.850, and affirm that part of the summary denial of the motion.
In his first ground, however, Etlinger contends that he is not procedurally barred from relief because recent supreme court decisions--Carawan v. State, 515 So.2d 161 (Fla.1987), and Royal v. State, 490 So.2d 44 (Fla.1986)--have held that his convictions and sentences for aggravated assault and grand theft in case number CRC8400694 violate the prohibition against double jeopardy.
Rule 3.850 provides, in pertinent part, that a motion for postconviction relief may be filed more than two years after the judgment and sentence have become final if it alleges that "the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively." Etlinger argues that the supreme court's decisions in Carawan and Royal come within this aspect of the rule.
In Royal the supreme court held that a person could not be properly convicted of robbery under section 812.13 if force, violence, or an assault were not used prior to or while taking the property. 490 So.2d at 46. Although the defendants in Royal could not be found guilty of robbery, under the facts of that case, the court did state that they could be convicted of aggravated assault with a deadly weapon, "which is a necessarily lesser included offense of robbery with a firearm...." Id. Etlinger contends that this statement in Royal supports his claim that he cannot be convicted of both armed robbery and aggravated assault with a deadly weapon. We disagree because the statement upon which Etlinger relies was not the precise holding in that case; and, standing alone, cannot be interpreted as establishing a fundamental constitutional right.
We do agree, however, that the supreme court's recent decision in Carawan supports Etlinger's double jeopardy claims....
To continue reading
Request your trial
-
State v. Smith
...Carawan. See Merckle v. State, 541 So.2d 1312 (Fla. 2d DCA 1989); Spadaro v. State, 539 So.2d 1169 (Fla. 2d DCA 1989); Etlinger v. State, 538 So.2d 1354 (Fla. 2d DCA 1989); Glenn v. State, 537 So.2d 611 (Fla. 2d DCA 1988); Pastor v. State, 536 So.2d 356 (Fla. 3d DCA 1988); Gonzalez-Osorio v......
-
State v. Finney, 89-229
...1312 (Fla. 2d DCA), review granted, 545 So.2d 1369 (Fla.1989); Spadaro v. State, 539 So.2d 1169 (Fla. 2d DCA 1989); State v. Etlinger, 538 So.2d 1354 (Fla. 2d DCA 1988); Jensen v. State, 538 So.2d 540 (Fla. 2d DCA), review granted, No. 73,828 (Fla. June 5, 1989); Glenn v. State, 537 So.2d 6......
-
Harmon v. State, 88-3183
...State, 538 So.2d 68 (Fla. 1st DCA 1989), reh. denied, 544 So.2d 266; Neal v. State, 531 So.2d 410 (Fla. 1st DCA 1988); Etlinger v. State, 538 So.2d 1354 (Fla. 2d DCA 1989). REVERSED AND ERVIN and WENTWORTH, JJ., concur. 1 Harmon v. State, 506 So.2d 500 (Fla. 1st DCA 1987) (Harmon I); Harmon......
-
Freda v. State, 89-2017
...State, 538 So.2d 68 (Fla. 1st DCA 1989), reh. denied, 544 So.2d 266; Neal v. State, 531 So.2d 410 (Fla. 1st DCA 1988); Etlinger v. State, 538 So.2d 1354 (Fla. 2d DCA 1989). ...