FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-1730
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DWAYNE PINESTRAW,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Escambia County.
Thomas V. Dannheisser, Judge.
February 28, 2018
ON MOTION FOR REHEARING EN BANC
B.L. THOMAS, C.J.
Appellant has filed a Motion for Rehearing En Banc of our
per curiam affirmance, in which we upheld the denial of relief
under Florida Rule of Civil Procedure 3.850. We deny Appellant’s
motion, but withdraw our opinion of August 24, 2017, and
substitute this opinion in its place.
Following a jury trial, Appellant was convicted and
sentenced to life imprisonment for first-degree murder, and two
15-year terms of imprisonment for attempted murder and
shooting into an occupied building. The record reflects that one
of the victims, Vincent Dennis, contacted Appellant under the
pretense of purchasing a pound of marijuana from him on behalf
of Dennis’s friend, Vaurus Barnett. Dennis knew that Barnett
was going to rob Appellant of the marijuana rather than pay for
it. The parties met at a gas station, and Appellant had with him
Shaquill Besst. While still seated in the car, Appellant handed
over the marijuana; Barnett then punched Appellant in the face
and took the gun off of Appellant’s lap. Appellant stated they
would “be back,” and drove off.
Dennis and Barnett took the marijuana to a friend’s
apartment. A few hours later, while the two were still inside the
apartment, the tenant’s brother opened the front door and told
Dennis there was a person outside wanting to buy marijuana.
When Dennis got to the door, Besst stated, “That’s him,” and
Appellant pulled a gun and started firing. Dennis shut the door,
but Appellant’s gunshots pierced the door and window of the
apartment.
Appellant shot Dennis three times. He also shot a 22-month-
old child located inside the apartment. The child received two
gunshots to his chest, and died from these injuries.
Appellant fled the scene of the shooting, and later abandoned
his residence, but was apprehended in Texas. Besst, having
negotiated a deal to plead to second-degree murder, testified
against Appellant. Besst described being present at the robbery
and afterward going with Appellant to the apartment where
Dennis and Barnett had retreated. He testified that only
Appellant had a gun, and Appellant pulled it out of his shorts and
shot at Dennis through the door and the window of the
apartment. He testified that after the shooting, he and Appellant
returned to Appellant’s apartment, at which time Appellant
called his mother to pick him up, and Appellant left with his
mother.
Besides the co-defendant’s testimony, the prosecution read to
the jury the sworn deposition of Appellant’s cousin, who was
undergoing kidney dialysis for a terminal condition with a
projected life expectancy of two months. The cousin stated that
Appellant had come to his home in Louisiana. He stated
Appellant had confessed to him that he shot at someone who had
robbed him and he thought he might have “killed” this person,
and he also admitted he might have “killed a baby.”
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In addition to this evidence, the State presented the
testimony of Barnett, Dennis, and several eyewitnesses present
at the shooting and during other events which inculpated
Appellant in the crimes. These persons either personally knew
Appellant or recognized him as the shooter and identified him
when shown a photo spread. The State also presented testimony
from a number of investigators and crime-scene analysts from the
police department and the Florida Department of Law
Enforcement who described the evidence located at the crime
scene.
Appellant did not take the stand. The defense rested
without presenting any testimony or evidence. The jury found
Appellant guilty as charged on all three counts.
Appellant’s direct appeal in this Court proceeded pursuant to
Anders v. California, 386 U.S. 738 (1967). In the initial brief,
counsel cited the statement of judicial acts to be reviewed, and
stated she could not in good faith argue trial court error or that
the judgment and sentence was contrary to the weight of the
evidence.
Appellant then filed his own pro se brief, arguing that the
trial court erred in denying his motion for judgment of acquittal
based on a lack of evidence that the murder was premeditated.
He also argued that the trial court committed fundamental error
by violating his right to confront his cousin, whom he asserted
was actually available to testify, as evidenced by the fact that he
was alive at the time Appellant wrote the brief. This Court
conducted a full and independent review of the record to
determine if any of Appellant’s assertions had merit, or whether
there were other arguable issues apparent on the face of the
record. This Court concluded that the argued claims were
meritless and no arguable claims were apparent, and affirmed
Appellant’s conviction. Pinestraw v. State, 151 So. 3d 1238 (Fla.
1st DCA 2014). Thereafter, Appellant filed a petition in this
Court, arguing appellate counsel had acted ineffectively by failing
to challenge the sufficiency of the evidence as to premeditation.
This Court denied Appellant’s petition. Pinestraw v. State, 161
So. 3d 1282 (Fla. 1st DCA 2015).
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Appellant next filed a rule 3.800(a) motion, asserting that
his life sentence is illegal pursuant to Miller v. Alabama, 132
S. Ct. 2455 (2012), in which the Supreme Court held that
mandatory life sentences without parole, imposed on juveniles for
homicide offenses, are illegal. Because Appellant was 19 years
old at the time of the commission of the offenses, he was not a
juvenile; thus, Miller and its related progeny did not apply, and
this Court affirmed the denial of relief. Pinestraw v. State, 178
So. 3d 403 (Fla. 1st DCA 2015).
Appellant then filed a timely motion under Florida Rule of
Civil Procedure 3.850. In it, he raised 18 total claims, 17 of
which asserted ineffective assistance of trial counsel. The
asserted claims included allegations that counsel should have:
challenged the indictment, because the oath taken by the
assistant state attorney who signed it had “expired,” because it
was required to be reviewed every four years, thus disqualifying
her from presenting evidence to the grand jury to obtain an
indictment; filed a pretrial motion in limine to stop the State
from noting the child’s age, how he died, or any reference to the
child as a “child, kid, or baby,” because the parties had stipulated
to the child’s birthdate; moved for a mistrial because the child’s
grandmother sobbed in the hallway outside the courtroom and
some of the noise could be heard in the courtroom; and called
Appellant’s father to testify that he took Appellant to park his car
near the father’s house on a date which reflected he could not
have visited his cousin on the date asserted by the cousin.
Due to pleading deficiencies, as required by Florida Rule of
Criminal Procedure 3.850(f)(2), on April 4, 2016, the trial court
struck the motion with leave to amend within 60 days. In its
order, the court explained to Appellant that it was not required to
provide legal guidance or suggestions on how to correct the
pleading deficiencies, if correction was possible. The court
explained that multiple allegations were “facially and/or legally
insufficient. For example, [Appellant’s] second ground is facially
insufficient.” * The court provided further instruction that the
*This claim is that counsel acted ineffectively by failing to
ensure no felon sat on his jury. It appears he is asserting that his
counsel had a flight to catch three days later, and she was in a
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motion should strictly follow the parameters of rule 3.850, and all
allegations should be set forth in separate claims containing
succinct facts and arguments. In its conclusion, the court told
Appellant that “any allegation of prejudice in fact is ‘strictly
applied’ and must be ‘positive, specific, and factual.’ Richardson
v. State, 677 So. 2d 43, 44 (Fla. 1st DCA 1996) (emphasis added).”
On May 18, 2016, Appellant filed a motion for an extension
or enlargement of the 60 days, which was scheduled to conclude
on June 3, until July 31. He stated his basis for the request was
that he was seeking the assistance of a certified law clerk, and
the correctional institution had more than 1000 inmates and only
two certified law clerks. Notably, he did not identify any specific
reason as to why he needed the assistance of a law clerk to
correct the facial insufficiencies.
On July 12, 2016, the trial court denied the request, stating
that the ground for the request failed to demonstrate good cause.
The court cited Manning v. State, 28 So. 3d 971, 973 (Fla. 2d DCA
2010), to inform Appellant that he should not appeal the order of
denial, but should file the amended motion as soon as possible
and allege the reason why he had untimely filed the motion. On
July 22, 2016, pursuant to the “Mailbox Rule,” Appellant filed the
amended motion. This was 49 days past the June 3, 2016, due
date. The motion was basically the same as the first motion, but
Appellant used language from the memorandum of law which
accompanied the original motion and inserted it into the
amended motion. Appellant’s motion continued to assert that the
prosecutor should not have been allowed to reference the child as
a “child” or “baby,” which he asserted was the reason why he was
convicted. Appellant asserted that counsel should not have
permitted the medical examiner to testify as to how the child
died. Appellant claimed that counsel haphazardly blundered
through jury selection, because she was more focused on getting
the trial over with in order to catch her flight three days later.
Further, despite the trial court’s instruction that he submit a
rush to get through the trial. He further asserts that the felons
were presumed to possess prejudice against one of the parties,
but does not actually assert they were prejudiced against him.
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reason to explain why the motion was filed outside of the 60 days
granted to him, Appellant did not provide any such statement.
The trial court denied the motion after finding Appellant
failed to demonstrate good cause as to why the motion was filed
outside of the 60 days. Appellant then filed a timely motion for
rehearing, arguing that he had provided the reason for the delay
in his May 2016 motion for extension of time, which was the
shortage of certified inmate law clerks. He corrected his prior
assertion as to the number of inmates and law clerks to state
there were instead 1900 inmates in the correctional institution
where he was held, and three certified legal interns, not two. He
protested that he had requested the extension in good faith, and
not to cause any delay. The trial court denied the motion.
Appellant timely appealed, and argued in his initial brief
that the trial court abused its discretion by denying the motion
for extension of time. Appellant asserted that the trial court
violated his due process rights by denying the motion as
untimely, without first issuing a show cause order. Appellant
argued that rule 3.850(f)(2), which allows for summary denial of
an amended motion which continues to be facially insufficient,
should require – as does subsection (n)(3), which concerns
motions evincing frivolous or malicious claims submitted in bad
faith or with reckless disregard for the truth – that the trial court
first issue a show cause order before denying the motion. We find
no merit in this claim, as subsection (n)(3) was drafted to address
frivolous, malicious, and bad-faith filings, whereas
subsection (f)(2) was intended to provide direction on how courts
should process motions which remain facially insufficient.
As to Appellant’s initial argument, Florida Rule of Criminal
Procedure 3.050 provides that when a defendant is required by
the rules to do an act within a specified time, “the court for good
cause shown may . . . order the period enlarged if a request
therefor is made before the expiration of the period originally
prescribed or extended by a previous order . . . .” And “[g]ood
cause is ‘a substantial reason, one that affords a legal excuse, or a
cause moving the court to its conclusion, not arbitrary or contrary
to all the evidence, and not . . . [a] hardship on petitioner.”
Whittey v. State, 965 So. 2d 362, 363 (Fla. 2d DCA 2007) (quoting
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State v. Boyd, 846 So. 2d 458, 460 (Fla. 2003)) (emphasis in
original).
In reviewing a trial court’s decision to deny an extension of
time to file a rule 3.850 motion, this Court has noted that
“[b]ecause the determination of good cause is based on the
peculiar facts and circumstances of each case, the trial court’s
exercise of discretion in weighing the equities involved will be
overruled only upon a showing of abuse.” Criner v. State, 59
So. 3d 196, 197 (Fla. 1st DCA 2011). The court in Whittey
concluded that, in light of the standard for good cause and the
trial court’s broad discretion in denying motions for an extension
of time, a need to schedule more time in the prison library to
conduct research, but difficulty in doing so, did not establish good
cause. 965 So. 2d at 364. In reaching this conclusion, the court
stressed that the deficiencies in the defendant’s original
postconviction motion were largely factual rather than legal, and
thus the defendant failed to demonstrate why additional research
was necessary to assist in restating his claims. Id.
In its analysis in Whittey, the Second District noted that this
Court reached a different conclusion in Daniels v. State, 892
So. 2d 526 (Fla. 1st DCA 2004), which involved the defendant’s
assertion that he needed to schedule time in the prison library
and obtain the aid of a prison law clerk to complete his motion for
rehearing. Whittey, 965 So. 2d at 363. In Daniels, the defendant
had filed a motion for an extension of time in which to file his
motion for rehearing. Daniels, 892 So. 2d at 527. The trial court
denied the motion seeking the extension after expiration of the
time period in which to timely file the motion for rehearing. Id.
The defendant then filed the rehearing motion more than 30 days
after rendition of the order denying the postconviction motion.
Id. After the trial court denied the untimely filed motion for
rehearing, the defendant filed a notice of appeal, more than five
months after rendition of the order denying the postconviction
motion. Id. In Daniels, which involved a petition for a belated
appeal, we held that the trial court’s belated denial of the motion
for extension of time to seek rehearing thwarted the defendant’s
ability to timely pursue his appeal. Id. The Whittey court
distinguished Daniels by noting that opinion did not discuss the
trial court’s broad discretion in denying a motion for an extension
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of time. Whittey, 965 So. 2d at 364. It further noted that, unlike
Daniels, Whittey did not lose his appellate rights due to the trial
court’s denial of the motion seeking the extension, which was
timely rendered and did not thwart his ability to file a timely
notice of appeal. Id. at 363.
Here, Appellant’s motion for extension of time in which to
file his amended postconviction motion was based upon his
assertion that he had delayed access to one of the correctional
institution’s certified law clerks. But it is well established that a
defendant does not have a constitutional entitlement to
postconviction counsel. See Kokal v. State, 901 So. 2d 766, 778
(Fla. 2005); Netting v. State, 129 So. 3d 429, 432 (Fla. 1st DCA
2013) (both stating that there is no constitutional entitlement to
the appointment of postconviction counsel). Thus, this ground is
not legally sufficient to constitute good cause, if the case does not
involve complex legal issues.
Additionally, although not required to do so, in denying
Appellant’s motion, the trial court provided some direction on
how to address the deficiencies in Appellant’s pleadings,
explaining that Appellant should state succinct facts and
arguments relevant to each claim. Importantly, the court
instructed Appellant that “any allegation of prejudice” must be
‘positive, specific, and factual.’” (First emphasis added; second
emphasis in original).
In essence, the trial court commendably attempted to ensure
that Appellant was given every opportunity to file an amended,
adequate, and timely motion. Indeed, it is the factual assertions
which fail to demonstrate that Appellant suffered prejudice:
Appellant possessed knowledge of the facts concerning the
proceedings, and consequently, it cannot be concluded that his
delayed access to a certified legal intern constituted good cause to
grant his motion for extension of time in which to file his
amended motion. See Whittey, 965 So. 2d at 364.
There being no cause to find the trial court abused its
discretion by denying Appellant’s motion for extension of time in
which to file his amended motion, we affirm the trial court’s order
of denial.
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AFFIRMED.
WOLF and WINOKUR, JJ., concur.
_____________________________
Dwayne Pinestraw, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Thomas H. Duffy,
Assistant Attorney General, Tallahassee, for Appellee.
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