Delap v. State

513 So. 2d 1050 (1987)

David Ross DELAP, Appellant, v. STATE of Florida, Appellee.

No. 71261.

Supreme Court of Florida.

October 13, 1987.

Gerry S. Gibson of Steel, Hector and Davis, Miami, for appellant.

Robert A. Butterworth, Atty. Gen. and Lee Rosenthal, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Delap appeals the denial of his second motion for postconviction relief[*] and seeks a stay of execution pending disposition of his appeal. The motion is procedurally barred for each of the reasons stated below:

(1) The motion was not filed by January 1, 1987, in accordance with the time limitations of Florida Rule of Criminal Procedure 3.850, and none of Delap's claims qualifies as exceptions set forth in that rule.

(2) The motion is a successive motion which constitutes an abuse of procedure. Delap's first two claims which challenge the validity of trial testimony concerning the cause of death of the victim were raised and rejected in Delap's previous motion for postconviction relief. Delap's *1051 third claim, predicated upon Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985), should have been raised, if at all, in Delap's first motion for postconviction relief which was filed more than six months after the United States Supreme Court's opinion in Caldwell.

We, therefore, affirm the order denying postconviction relief and deny Delap's application for a stay of execution. No petition for rehearing will be entertained.

It is so ordered.

McDONALD, C.J., and OVERTON, EHRLICH, SHAW and GRIMES, JJ., concur.

BARKETT, J., concurs specially with an opinion, with which KOGAN, J., concurs.

BARKETT, Judge, specially concurring.

I concur because the merits of this appeal from the Court's denial of defendant's 3.850 motion have already been considered and denied by this Court.

KOGAN, J., concurs.

[*] The Court affirmed the denial of a previous motion under Florida Rule of Criminal Procedure 3.850 in Delap v. State, 505 So. 2d 1321 (Fla. 1987).