McCray v. State, No. 90305

CourtUnited States State Supreme Court of Florida
Writing for the CourtOVERTON; KOGAN, C.J., and ANSTEAD
Citation699 So.2d 1366
Parties22 Fla. L. Weekly S627 Ervin McCRAY, Petitioner, v. STATE of Florida, et al., Respondents.
Docket NumberNo. 90305
Decision Date09 October 1997

Page 1366

699 So.2d 1366
22 Fla. L. Weekly S627
Ervin McCRAY, Petitioner,
v.
STATE of Florida, et al., Respondents.
No. 90305.
Supreme Court of Florida.
Oct. 9, 1997.

Page 1367

Patrick C. Rastatter of Glass & Rastatter, P.A., Fort Lauderdale, for petitioner.

No appearance for respondent.

OVERTON, Justice.

Ervin McCray petitions this Court for writ of habeas corpus, asserting a claim of ineffective assistance of appellate counsel. We have jurisdiction. Art. V, § 3(b)(9), Fla. Const. We deny the petition, finding it to be barred by the doctrine of laches.

McCray was convicted of first-degree murder for a 1980 homicide. Initially, he received the death penalty for that conviction. In 1982, this Court reduced that sentence on direct appeal to life imprisonment without parole for twenty-five years in accordance with the jury's recommendation. McCray v. State, 416 So.2d 804 (Fla.1982). Now, fifteen years later, McCray has filed this petition, asserting that his appellate counsel was ineffective in failing to raise an issue regarding the asserted erroneous introduction of a prior conviction during the conviction phase of his trial.

Were McCray raising the issue of ineffective assistance of trial counsel, his petition would be barred pursuant to Florida Rule of Criminal Procedure 3.850, which sets forth a two year time limit for filing most motions for post-conviction relief. 1 Ineffective assistance of appellate counsel, which is asserted here, is not covered under that rule. Rogers v. Singletary, 698 So.2d 1178 (Fla. 1996). Recently, however, this Court amended Florida Rule of Appellate Procedure 9.140(j)(3)(B) to establish time limits on claims of ineffective assistance of appellate counsel. That rule provides:

Page 1368

A petition alleging ineffective assistance of appellate counsel shall not be filed more than two years after the conviction becomes final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel.

Under this rule, McCray's petition would be barred because his petition contained no allegation under oath that he was misled by counsel about the results of the appeal. However, rule 9.140(j)(3)(C) provides that the time period set forth in rule 9.140(j)(3)(B) "shall not begin to run prior to the effective date of this rule." The rule became effective January 1, 1997. As such, under this rule, McCray has two years from January 1, 1997, to bring this petition. Nevertheless, this does not mean that we are prohibited from finding the...

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92 practice notes
  • Downs v. Moore, No. SC00-2186.
    • United States
    • United States State Supreme Court of Florida
    • September 26, 2001
    ...filed more than twenty years after Downs' conviction and sentence became final, and therefore requires dismissal under McCray v. State, 699 So.2d 1366 (Fla.1997), and (2) it was not filed simultaneously with the most recent appeal from the denial of his 3.850 motion as required under rule 9......
  • Unger v. State, No. 111
    • United States
    • Court of Appeals of Maryland
    • August 16, 2012
    ...have applied the doctrine of laches to bar postconviction claims coming many years after the asserted errors. See, e.g., McCray v. State, 699 So.2d 1366, 1368 (Fla.1997) (applying the doctrine of laches to bar a petitioner's claim of ineffective assistance of counsel made 15 years after tri......
  • Unger v. State, No. 111
    • United States
    • Court of Special Appeals of Maryland
    • May 24, 2012
    ...applied the doctrine of laches to bar postconviction claims coming many years after the asserted errors. See, e.g., McCray v. State, 699 So. 2d 1366, 1368 (Fla. 1997) (applying the doctrine of laches to bar a petitioner's claim of ineffective assistance of counsel made 15 years after trial,......
  • Ex parte Perez, No. AP–76800.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 8, 2013
    ...prejudice to State five years after conviction in light of social and administrative costs associated with retrial); McCray v. Florida, 699 So.2d 1366,1368 (Fla.1997) (applying presumption of prejudice in Florida post-conviction cases after five years, explaining that it was “obvious that t......
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92 cases
  • Downs v. Moore, No. SC00-2186.
    • United States
    • United States State Supreme Court of Florida
    • September 26, 2001
    ...filed more than twenty years after Downs' conviction and sentence became final, and therefore requires dismissal under McCray v. State, 699 So.2d 1366 (Fla.1997), and (2) it was not filed simultaneously with the most recent appeal from the denial of his 3.850 motion as required under rule 9......
  • Unger v. State, No. 111
    • United States
    • Court of Appeals of Maryland
    • August 16, 2012
    ...have applied the doctrine of laches to bar postconviction claims coming many years after the asserted errors. See, e.g., McCray v. State, 699 So.2d 1366, 1368 (Fla.1997) (applying the doctrine of laches to bar a petitioner's claim of ineffective assistance of counsel made 15 years after tri......
  • Unger v. State, No. 111
    • United States
    • Court of Special Appeals of Maryland
    • May 24, 2012
    ...applied the doctrine of laches to bar postconviction claims coming many years after the asserted errors. See, e.g., McCray v. State, 699 So. 2d 1366, 1368 (Fla. 1997) (applying the doctrine of laches to bar a petitioner's claim of ineffective assistance of counsel made 15 years after trial,......
  • Ex parte Perez, No. AP–76800.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 8, 2013
    ...prejudice to State five years after conviction in light of social and administrative costs associated with retrial); McCray v. Florida, 699 So.2d 1366,1368 (Fla.1997) (applying presumption of prejudice in Florida post-conviction cases after five years, explaining that it was “obvious that t......
  • Request a trial to view additional results

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