McAffee v. State

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JERRY McAFFEE, ) ) Appellant, ) ) v. ) ) STATE OF FLORIDA, ) ) Appellee. ) ) ________________________________ ) Case No. 2D05-4190 Opinion filed March 8, 2006. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Robert E. Beach, Senior Judge. KELLY, Judge. Jerry McAffee appeals the summary dismissal of his petition for writ of habeas corpus and the denial of his motion for rehearing, alleging three claims of prosecutorial misconduct. Because McAffee is precluded from raising his claims in a petition for writ of habeas corpus, we affirm the order of the trial court dismissing McAffee s petition. See White v. Dugger, 511 So. 2d 554 (Fla. 1987) (holding that habeas corpus is not the proper vehicle to raise issues that should have and could have been raised on direct appeal or in a Florida Rule of Criminal Procedure 3.850 proceeding). Our affirmance is without prejudice to any right McAffee may have to file a timely, facially sufficient rule 3.850 motion based on newly discovered evidence. See Ford v. State, 912 So. 2d 388 (Fla. 2d DCA 2005). Any such motion will not be considered successive. Affirmed. STRINGER and VILLANTI, JJ., Concur. -2-

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