         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D16-4862
                 _____________________________

ARTHUR JOHNSON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                    ___________________________

On appeal from the Circuit Court for Duval County.
Marianne L. Aho, Judge.

                           May 25, 2018


B.L. THOMAS, C.J.

     Appellant challenges the postconviction court’s denial of his
motion to amend his motion for postconviction relief pursuant to
Florida Rule of Criminal Procedure 3.850. Because Appellant’s
new claims do not relate back to the claims raised in his original
timely filed motion, the amended motion is time barred, and we
affirm the postconviction court’s denial of his request to amend
his motion. We reject Appellant’s further attempt to raise a new
argument for the first time on appeal.

                               Facts

    Appellant entered a negotiated guilty plea to a charge of
attempted first-degree murder, and the trial court sentenced
Appellant to 29 years in state prison, with a mandatory
minimum of 25 years.        Appellant did not appeal, and his
sentence became final. Appellant subsequently filed a timely
motion for postconviction relief pursuant to Florida Rule of
Criminal Procedure 3.850, arguing, inter alia, that his trial
counsel was ineffective for failing to seek suppression of
Appellant’s confession. The postconviction court ordered an
evidentiary hearing on the ineffective assistance ground, and one
week before the evidentiary hearing, Appellant filed a motion to
amend his postconviction motion.
     The pertinent ground in Appellant’s initial motion alleged
that his counsel should have moved to suppress his confession
because it was given without a Miranda warning; Appellant
moved to amend the motion to assert a claim that he may have
received a Miranda warning, but because he was intoxicated
when it was given, he did not knowingly, voluntarily, or
intelligently waive his rights. The court ruled that, because
Appellant’s sentence became final on December 12, 2009, the two-
year window to file claims for postconviction relief closed in
December 2011, five years prior to Appellant’s motion to amend.

                            Analysis

    The standard of review for a trial court’s determination
regarding a motion to amend a motion for postconviction relief
pursuant to Florida Rule of Criminal Procedure 3.850 is whether
there was an abuse of discretion. Huff v. State, 762 So. 2d 476,
481 (Fla. 2000) (citing McConn v. State, 708 So. 2d 308, 310 (Fla.
2d DCA 1998)).

     “A trial court may properly deny an amended rule 3.850
motion as untimely when it raises new claims and is filed outside
of the two-year time period.” Lanier v. State, 826 So. 2d 460, 461
(Fla. 1st DCA 2002). “The two-year time period, however, does
not preclude the enlargement of issues which were raised in a
timely filed motion for postconviction relief.” Id. When an
amended motion “actually raises new issues of ineffective
assistance of counsel that were not raised in the previous
motion,” the lower court does not err in denying a motion to
amend. Huff, 762 So. 2d at 481.


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     Appellant argues that his amendment was permitted outside
the two-year window, because the amendment related to an
existing claim that was timely filed, citing to Lanier. In Lanier,
the appellant timely filed a rule 3.850 motion, and filed an
amendment more than two years after his judgment and
sentence became final. 826 So. 2d at 461. The appellant’s initial
motion claimed ineffective assistance of counsel for failing to
raise the issue of entrapment, and his amendment stated that
counsel knew there were witnesses whose testimony could show
police misconduct which induced the appellant to commit the
crime. Id.     This court held that, although the appellant’s
amendment was untimely to the extent that it attempted to raise
an ineffective assistance claim based on a new claim of police
misconduct, it related back to the extent that the amended
motion provided new information to support the original, timely
filed claim. Id. at 461-62.

     Here, Appellant’s motion to amend does not attempt to
provide new information to support his original claim, but rather
attempts to raise a new basis for ineffective assistance of counsel.
Appellant’s initial claim was that counsel was ineffective for
failing to move to suppress a confession given without a Miranda
warning, while his new claim is that he was intoxicated while the
Miranda warning was given. The additional information that
Appellant had been smoking and drinking at the time of
detention does not enlarge the original claim that the Miranda
warning was not given. Rather, it raises a new claim. Because
Appellant’s amended motion was filed after the two-year window
had closed, and the motion raised new claims not raised in
Appellant’s original motion, the trial court did not abuse its
discretion in denying the motion.

    AFFIRMED.

WOLF and RAY, JJ., concur.




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                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

Arthur Johnson, pro se, Appellant.

Pamela Jo Bondi, Attorney General, Michael L. Schaub,
Assistant Attorney General, Tallahassee for Appellee.




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