Polk v. State

820 So. 2d 456 (2002)

Ronald POLK, Appellant,
v.
STATE of Florida, Appellee.

No. 5D02-1218.

District Court of Appeal of Florida, Fifth District.

July 12, 2002.

Ronald Polk, Wewahitchka, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee.

SHARP, W., J.

Polk appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. He seeks in this motion to reassert ineffective assistance of counsel claims. He previously filed such a motion, which the trial court denied without a hearing. This court affirmed that order, without opinion. See Polk v. State, 765 So. 2d 720 (Fla. 5th DCA 2000).

The claims contained in this motion are the same as those raised in his prior motion: counsel failed to move to suppress physical evidence and failed to subpoena witnesses Rhonda Brown and Rodney Gardner. Polk alleges that the first motion was not decided on the merits, but rather was denied because of procedural defects, because she failed to allege the witnesses not called were available and failed to state how their testimony would have changed the outcome of the trial.

The trial court noted that the ineffective assistance claims had been raised in the prior proceeding, and that they were rejected as both legally insufficient and without merit, as shown by the attachments. Thus, the prohibition against successive motions applies in this case. See Freeman v. State, 773 So. 2d 110 (Fla. 5th DCA 2000), rev. denied, 805 So. 2d 806 (Fla. 2001).

AFFIRMED.

GRIFFIN and ORFINGER, R.B., JJ., concur.