5D09-1292 Joseph Finfrock v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D09-1292

Case Date: 02/01/2010

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2010

JOSEPH W. FINFROCK, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Decision filed February 5, 2010 Appeal from the Circuit Court for Volusia County, Patrick Kennedy, Judge. Joseph W. Finfrock, Arcadia, pro se. Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D09-1292

PER CURIAM. AFFIRMED. PALMER and TORPY, JJ., concur. COHEN, J., concurs and concurs specially, with opinion.

CASE NO. 5D09-1292 COHEN, J., concurring specially. Notwithstanding my agreement with the panel that relief is procedurally barred as being successive, I write to discuss the exception to the two-year time limit to file a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850(b). Appellant contends that his request for postconviction relief was timely because he was not informed of the collateral consequences of his plea under the Jimmy Ryce Act1 and could not have known of them until he was subjected to civil commitment proceedings at the completion of his sentence.2 Appellant's claim is based upon the failure to

advise, rather than affirmative misadvice. In Peart v. State, 756 So. 2d 42, 46 (Fla. 2000), the court held that the two-year period for moving to withdraw a plea on grounds that the trial court failed to advise the defendant that the plea could result in deportation begins "when the defendant has or should have knowledge of the threat of deportation based on the plea." Six years later, noting that "[s]tare decisis yields 'when an established rule of law has proven unacceptable or unworkable in practice,'" the supreme court, in State v. Green, 944 So. 2d 208, 217-18 (Fla. 2006), receded from Peart, holding that "[t]hese claims must be

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