Torres v. State , 274 So. 3d 431 ( 2019 )

Third District Court of Appeal
State of Florida
Opinion filed April 24, 2019.
Not final until disposition of timely filed motion for rehearing.
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No. 3D19-0402
Lower Tribunal No. 05-29587
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Yosvani Torres,
Petitioner,
vs.
Mark Inch, etc., et al.,
Respondents.
A case of Original Jurisdiction-Habeas Corpus.
Yosvani Torres, in proper person.
Ashley Moody, Attorney General, for respondent, the State of Florida.
Before SALTER, LINDSEY, and MILLER, JJ.
MILLER J.
Yosvani Torres petitions this Court for a writ of habeas corpus alleging
ineffective assistance of appellate counsel. We dismiss the petition as untimely
pursuant to Florida Rule of Appellate Procedure 9.141(d)(5).
In 2009, Torres was convicted and sentenced for two counts of capital sexual
battery, and was duly sentenced. We affirmed his conviction and sentence on
direct review in Torres v. State, 54 So. 3d 535 (Fla. 3d DCA 2011). On February
4, 2011, the mandate issued and Torres’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 2 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 4 years after the judgment and sentence
become final on direct review.
As Torres filed the instant habeas corpus petition on February 27, 2019, more than
eight 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 (Fla. 3d DCA 2017); see also Burroughs v. State, 65 So. 3d 1175 (Fla. 1st
DCA 2011); Chance v. State, 65 So. 3d 1176 (Fla. 1st DCA 2011).
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