DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
DAVID MOORE, JR.,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D14-2723
[October 15, 2014]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Nineteenth Judicial Circuit, Martin County; Elizabeth A. Metzger,
Judge; L.T. Case No. 431994CF000959A.
David Moore, Jr., Milton, pro se.
No appearance required for appellee.
PER CURIAM.
We affirm the denial of appellant’s successive and untimely motion for
postconviction relief. Appellant raised the same claim regarding
misadvice of counsel regarding his plea in Moore v. State, 114 So. 3d 291
(Fla. 4th DCA 2013). He claims that because of Alcorn v. State, 121 So.
3d 419 (Fla. 2013), decided after Moore, he is entitled to re-raise this
same claim. However, Florida Rule of Criminal Procedure 3.850(b)(3)
permits a claim to be raised beyond the two-year time limitation only
“where the fundamental constitutional right asserted was not established
within the period provided for herein and has been held to apply
retroactively, and the claim is made within 2 years of the date of the
mandate of the decision announcing the retroactivity.” Neither Alcorn
nor any decision since its rendition has held that it is to be applied
retroactively, nor does it appear that Alcorn meets the retroactivity test
announced in Witt v. State, 387 So. 2d 922 (Fla. 1980).
Affirmed.
DAMOORGIAN, C.J., WARNER and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.