White v. State

               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT

SCOTTIE LEE WHITE,                  )
                                    )
           Appellant,               )
                                    )
v.                                  )                   Case No. 2D13-6132
                                    )
STATE OF FLORIDA,                   )
                                    )
           Appellee.                )
___________________________________ )

Opinion filed August 27, 2014.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Pasco County; Linda Babb, Judge.

Scottie Lee White, pro se.


NORTHCUTT, Judge.

              We affirm the postconviction court's denial of Scottie Lee White's petition

for writ of habeas corpus, which the court appropriately treated as an untimely motion

filed under Florida Rule of Criminal Procedure 3.850. White claimed that the trial court

committed fundamental error when it gave an erroneous instruction on voluntary

manslaughter, citing State v. Montgomery, 39 So. 3d 252, 257-58 (Fla. 2010). We write

only to observe that the postconviction court properly rejected this contention on the

ground that the Montgomery case does not apply retroactively to cases that were final
before it issued. See Mendoza v. State, 93 So. 3d 458, 458 (Fla. 4th DCA 2012);

Harricharan v. State, 59 So. 3d 1162, 1163 (Fla. 5th DCA 2011).



             Affirmed.

SILBERMAN and KELLY, JJ., Concur.




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