Hughes v. State
| Decision Date | 13 November 2009 |
| Docket Number | No. 2D09-19.,2D09-19. |
| Citation | 22 So.3d 132 |
| Parties | Ernest L. HUGHES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Ernest L. Hughes appeals the trial court's order denying his postconviction motion as untimely. Pursuant to a plea agreement, Mr. Hughes was sentenced to life in prison in 1997 for killing a woman with a hatchet during a robbery. In 2008, he filed his postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850. His motion alleges that although it is filed beyond the normal two-year limitation period of rule 3.850(b), it should nevertheless be given full consideration because the claim alleged is a matter of "fundamental error." We affirm the trial court's order and write to dispel the common misconception among prisoners that "fundamental error" can be reviewed in a postconviction proceeding at any time, including beyond the two-year period normally permitted for motions filed under rule 3.850.
Admittedly, a generic concept of "fundamental error" has been mentioned extensively in opinions discussing postconviction relief. Nevertheless, "fundamental error," as most commonly defined as an error for which relief can be given on direct appeal even if the issue was not preserved in the trial court, is not a basis to justify an extension of time for the filing of a postconviction motion. Indeed, an error that is actually reviewable on direct appeal as "fundamental error" cannot be raised on postconviction review except as a matter of ineffective assistance of counsel. Thus, we write to discourage the use of this term in postconviction proceedings and to encourage defendants to allege a claim using the language of rule 3.850 or other more specific legal concepts.
Mr. Hughes deserves credit for not concealing the successive and belated nature of his motion. He admits that he was indicted for murder in 1997 and that he pleaded nolo contendere to that charge in exchange for a life sentence. He recites that he has filed four prior postconviction motions. The last motion was filed in 2008 and denied as untimely. He believes that this motion deserves consideration on the merits because it raises an issue not raised in the prior motions, an issue that he claims is a matter of "fundamental error" that can be corrected at any time, including a decade after his judgment and sentence became final.
The error that Mr. Hughes maintains is "fundamental" does not actually appear to be an error of any sort. He complains that the grand jury indicted him for murder, stating that he "did unlawfully, while engaged in the perpetration of, or in the attempt to perpetrate a robbery, kill and murder [the victim], a human being, by hitting her in the head with a hatchet in violation of Florida Statute 782.04." He believes that he could not plead nolo contendere to first-degree felony murder in light of the language of this charging document. He believes that the indictment needed to allege that he committed the crime with "premeditated design." Clearly, he is confused about the nature of first-degree felony murder versus first-degree premeditated murder. See § 782.04(1)(a), Fla. Stat. (1996). He was charged with felony murder and was convicted of the same because he pleaded to that crime.
Despite the weakness of his theory, this court is interested in his argument that a fundamental error can be raised at any time, including beyond the normal period for a postconviction writ. This theory has become a common claim by prisoners. As explained below, the use of this term by defendants probably diminishes their chances of success. The judicial use of the term "fundamental error" in the postconviction setting has been rather loose, but it has related to a far narrower range of issues than those that are reasonably perceived by a prisoner untrained in the law as matters of fundamental error.
Florida Rule of Criminal Procedure 3.850 contains a reasonably extensive explanation of the grounds for and the contents of such a motion. In subsection (a) it states:
(a) Grounds for Motion. The following grounds may be claims for relief from judgment or release from custody by a person who has been tried and found guilty or has entered a plea of guilty or nolo contendere before a court established by the laws of Florida:
(1) The judgment was entered or sentence was imposed in violation of the Constitution or laws of the United States or the State of Florida.
(2) The court did not have jurisdiction to enter the judgment.
(3) The court did not have jurisdiction to impose the sentence.
(4) The sentence exceeded the maximum authorized by law.
(5) The plea was involuntary.
(6) The judgment or sentence is otherwise subject to collateral attack.
The rule proceeds to explain the normal two-year time limitations for such motions, followed by a list of three recognized exceptions to those limitations. Those exceptions include:
(1) the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence, or
(2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively, or
(3) the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion.
Fla. R.Crim. P. 3.850(b). At the conclusion of subsection (c), which describes the contents of the motion, the rule states:
This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.
Noteworthy to this discussion is that nothing in the rule states that "fundamental error" is a ground for relief.
There are undoubtedly several definitions of "fundamental error." In Florida, however, the term is most frequently equated with an error that "can be considered on appeal without objection in the lower court." State v. Smith, 240 So.2d 807, 810 (Fla.1970). "In its narrowest functional definition, `fundamental error' describes an error that can be remedied on direct appeal, even though the appellant made no contemporaneous objection in the trial court and, thus, the trial judge had no opportunity to correct the error." Judge v. State, 596 So.2d 73, 79 n. 3 (Fla. 2d DCA 1991). The case law often attempts to further define "fundamental error" in order to help judges and practitioners to predict whether a particular error will fall into this category, but all of the definitions attempt to create a "narrow" category of issues that can be reviewed on direct appeal despite the party's failure to preserve the issue by objection in the lower tribunal. See Maddox v. State, 760 So.2d 89, 95 (Fla. 2000).
If a "fundamental error," as so defined, is one that can be reviewed on direct appeal without any preservation in the lower court, then such an error arguably is a ground "that could have or should have been raised ... on direct appeal of the judgment and sentence." See Fla. R.Crim. P. 3.850(c). In other words, the requirement of proper preservation in rule 3.850 requires no action in the trial court to allow review on direct appeal of an issue that is fundamental error. Accordingly, it is not surprising that courts have occasionally observed that an issue could not be raised in a postconviction motion because, if it truly were a matter of fundamental error, it could have and should have been raised on direct appeal. See Franqui v. State, 965 So.2d 22, 35 (Fla.2007); Brudnock v. State, 16 So.3d 839 (Fla. 5th DCA 2009).
Obviously, there are times when an error that is unsuccessfully argued as fundamental error on direct appeal results in a facially sufficient claim in a postconviction proceeding because the trial lawyer was allegedly ineffective when he or she failed to object to the offending evidence or argument, thereby rendering the outcome of the trial court proceedings unreliable. See, e.g., Nolan v. State, 794 So.2d 639, 641 (Fla. 2d DCA 2001) (). However, in that context, the postconviction claim is not and should not be raised as a claim of "fundamental error." When a postconviction claim is raised with an allegation that it is a matter of fundamental error, the defendant essentially invites the trial court to rely on the above-cited cases to dismiss the claim as one that could and should have been resolved on direct appeal.
There are now more than 140 reported cases that reference "fundamental error" in the context of "postconviction" relief.1 It is undoubtedly impossible to sort all of these cases into a few categories. There do, however, appear to be four categories demonstrating that the use of the term outside the definition used in the preceding section can lead to confusion.
First, there are cases that use the term "fundamental error" to mean an error that is reviewable without preservation at a procedural level other than direct appeal. For example, in response to a petition for habeas corpus, the supreme court stated:
An allegation of fundamental error may, under certain situations, be used to avoid some types of procedural bar. See generally Maddox ("a narrow class of unpreserved sentencing errors can be raised on direct appeal as fundamental error"). Nevertheless, the concept of fundamental error was never intended to provide litigants with a means to circumvent the type of...
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Turner v. Sec'y, Fla. Dep't of Corr.
...invites the trial court ... to dismiss the claimas one that could and should have been resolved on direct appeal." Hughes v. State, 22 So. 3d 132, 135 (Fla. 2d DCA 2009).Assuming arguendo this claim was not procedurally barred, it still fails. Defendant argues that trial counsel objected to......
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Wilson v. Sec'y, Dep't of Corr.
...error is not a basis for postconviction relief." Moore v. State, 48 So. 3d 911, 912 (Fla. 2d DCA 2010) (citing Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009)). Accordingly, the Court finds Defendant is not entitled to any relief on the allegations in [the claim]. The trial court instruct......
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...right asserted was not established within the period provided for herein and has been held to apply retroactively.'" Hughes v. State, 22 So. 3d 132, 137 (Fla. 2d DCA 2009) (quoting Fla. R. Crim. P. 3.850(b)(2)). Fundamental error, however, is not a valid ground for an untimely post convicti......
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