DIAZ v. STATE (2020)

Reinaldo Diaz petitions this Court for a writ of habeas corpus alleging ineffective assistance of appellate counsel. We dismiss the amended petition as untimely pursuant to Florida Rule of Appellate Procedure 9.141(d)(5).

In 2007, Diaz was convicted of five counts of robbery with a deadly weapon, two counts of falsely impersonating an officer in the commission of a felony, and one count of grand theft in the third degree, and was duly sentenced. We affirmed his conviction and sentence on direct review in Diaz v. State, 8 So. 3d 1144 (Fla. 3d DCA 2009). On June 5, 2009, the mandate issued, and Diaz's judgment and sentence became final.

Florida Rule of Appellate Procedure 9.141(d)(5) provides:

A petition alleging ineffective assistance of appellate counsel on direct review shall not be filed more than [two] years after the judgment and sentence become final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel. In no case shall a petition alleging ineffective assistance of appellate counsel on direct review be filed more than [four] years after the judgment and sentence become final on direct review.

As Diaz filed the instant petition for writ of habeas corpus on February 3, 2020,¹ more than ten years after his judgment and sentence became final, we dismiss the petition as procedurally barred under rule 9.141(d)(5). See Mendoza v. State, 224 So. 3d 836, 837 (Fla. 3d DCA 2017) (“Because Mendoza's petition was filed ․ more than four years after his judgment and sentence became final on direct review, we dismiss [the] petition as procedurally barred under rule 9.141(d)(5).”) (citing Melara v. State, 997 So. 2d 1135, 1136 (Fla. 3d DCA 2008)).

Dismissed.

FOOTNOTES

1.   The petition was amended on February 6, 2020.

PER CURIAM.