Ferenc v. State, 97-0991
| Decision Date | 25 July 1997 |
| Docket Number | No. 97-0991,97-0991 |
| Parties | 22 Fla. L. Weekly D1808 John M. FERENC, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
John M. Ferenc, Polk City, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
Upon review of the trial court's summary denial of John M. Ferenc's (defendant) motion for postconviction relief, we affirm. The defendant filed a motion for postconviction relief styled "Motion to Withdraw Nolo Contendere Plea," challenging his 1977 conviction for burglary of a dwelling. The trial court denied the motion, and the defendant appealed. The defendant also filed a motion to proceed on appeal in forma pauperis. The trial court denied the motion, finding that his appeal was frivolous. Specifically, the trial court stated:
The Court concludes the defendant may be indigent, but his appeal is frivolous, without foundation in law or fact, and the application to the County to fund his appeal is denied.
In denying the motion to proceed in forma pauperis, the trial court apparently relied on section 57.085(8), Florida Statutes (1995), which authorizes the trial court to dismiss a frivolous proceeding initiated by an indigent prisoner under certain circumstances at any time. However, subsection (10) of the statute provides that section 57.085 "does not apply to a criminal proceeding or a collateral criminal proceeding." Accordingly, the denial of the defendant's motion was improper.
Florida Rule of Appellate Procedure 9.430 provides that an appellate court may presume that an incarcerated defendant, who has been previously declared indigent in the proceedings before the trial court, remains indigent in the absence of evidence to the contrary. The defendant was declared indigent at trial and was appointed counsel. No evidence has since been presented indicating that the defendant is no longer indigent. Accordingly, we grant the defendant's request to proceed in forma pauperis and consider the summary denial of his motion for postconviction relief.
The defendant claims that the trial court's denial of his motion for postconviction relief was in error. We disagree. Florida Rule of Criminal Procedure 3.850(b) requires that motions for postconviction relief be filed within two years after the judgment and sentence become final. See Bannister v. State, 606 So.2d 1247, 1248 (Fla. 5th DCA 1992). There are three exceptions to the two-year limitation: (1) a claim of illegal sentence; (2) a claim of newly discovered evidence; and (3) a claim based on a...
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