GILLEN v. MOORE (1999)

District Court of Appeal of Florida,Fourth District.

John Thomas GILLEN, Petitioner, v. Michael W. MOORE, Respondent.

No. 99-3012.

Decided: October 13, 1999

John Thomas Gillen, Bowling Green, pro se. No response required for respondent.

We deny John Thomas Gillen's second petition for writ of habeas corpus, in which he again seeks a belated appeal of his 1990 conviction and sentence. His first petition was denied on the ground that it was barred by laches under Wing v. State, 704 So.2d 1154 (Fla. 4th DCA 1998). After this court receded from Wing in Patterson v. State, 736 So.2d 1270 (Fla. 4th DCA 1999)(en banc), Gillen filed a second petition.

Patterson does not permit Gillen to file a second belated appeal request because the change in law announced in that decision does not meet the test for retroactive application. See Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). Furthermore, the new petition is barred by the two year limitations period of Florida Rule of Appellate Procedure 9.140(j)(3)(1999).

PETITION DENIED.

PER CURIAM.

WARNER, C.J., GUNTHER and POLEN, JJ., concur.

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