          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D18-1040
                 _____________________________

RUBEN MARTINEZ,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Bay County.
Michael C. Overstreet, Judge.

                        February 27, 2019

B.L. THOMAS, C.J.

     Appellant challenges the trial court’s order summarily
denying postconviction relief. For the reasons discussed below, we
affirm.

     In October 2013, Appellant was charged by amended
information with sexual battery on a person less than twelve years
of age (Count I) and lewd and lascivious molestation (Count II). At
trial, the minor victim testified that when she was nine, Appellant,
her grandfather, asked to sleep in her bedroom and then touched
her inappropriately, including digital penetration. She asked him
to stop, and he made her promise to keep it a secret. She testified
that Appellant also molested her when she was seven or eight
years old while she was visiting him in Colorado. The victim’s
older sister testified that Appellant had touched her
inappropriately on multiple occasions as well.        Appellant’s
stepdaughter also testified that Appellant had molested her when
she was a child, including digital penetration.

    The jury found Appellant guilty as charged, and Appellant
was sentenced to life in prison on Count I, and Count II was
vacated. Bolding v. State, 28 So. 3d 956, 957 (Fla. 1st DCA 2010)
(“When a jury finds a defendant guilty of two offenses, and the
defendant cannot be adjudicated guilty of both due to the
constitutional prohibition against double jeopardy, the proper
remedy is to vacate the verdict of guilt as to one of the offenses.”).
This Court per curiam affirmed Appellant’s judgment and
sentence, and the supreme court denied habeas relief. Martinez v.
State, 156 So. 3d 1081 (Fla. 1st DCA 2015) (Table); Martinez v.
State, 171 So. 3d 118 (Fla. 2015) (Table).

     In 2016, within the two-year deadline, Appellant filed a
Motion for Postconviction Relief pursuant to Florida Rule of
Criminal Procedure 3.850, raising the same claims raised in a
previously filed motion under Florida Rule of Criminal Procedure
3.800. The trial court issued an order striking the 3.850 motion as
facially insufficient and gave Appellant sixty days to file an
amended motion. In his amended motion, Appellant alleged that
defense counsel was ineffective for: 1) failing to object to the State
withholding evidence; 2) failing to move for a continuance;
3) allowing the State to introduce collateral crime evidence that
became a feature of the trial; and 4) failing to object to
prosecutorial statements that appealed to juror sympathy. The
trial court summarily denied the motion with prejudice, ruling
that Appellant failed to allege sufficient facts showing how counsel
was deficient or the case was prejudiced. This Court per curiam
affirmed the trial court’s order denying collateral relief. Martinez
v. State, 235 So. 3d 809 (Fla. 1st DCA 2017) (Table).

    In 2017, Appellant filed a “Second and Successive Motion for
Postconviction Relief,” raising ten grounds. The trial court
summarily denied the motion, and Appellant now timely appeals.

                              Analysis

    A rule 3.850 motion must be filed within two years of the
judgment and sentence becoming final. Fla. R. Crim. P. 3.850(b).
                                  2
Thus, newly raised ineffective assistance of counsel claims filed
after the two-year deadline will be procedurally barred as
untimely. Johnson v. State, 247 So. 3d 698, 700 (Fla. 1st DCA
2018). Because Appellant’s judgment and sentence became final
more than two years before the October 2017 filing of Appellant’s
second motion, his claims are procedurally barred as untimely
unless any fall within an exception to the two-year deadline.
Appellant asks this Court to treat his motion as timely on the
grounds that his mental illnesses, including dementia, render him
100% disabled.

     In Beech v. State, 127 So. 3d 559, 560 (Fla. 4th DCA 2012), the
appellant attempted to excuse his untimely filing of a
postconviction motion based on his mental illness and placement
in a suicide unit. The Fourth District found no merit in this
argument, for although the appellant claimed that his
circumstances rendered him unable to timely file the appropriate
motion, he had in fact filed an earlier postconviction motion within
the time limit, belying his argument. Id. As in Beech, Appellant’s
argument that he was unable to timely file the instant motion is
belied by the fact that he filed previous postconviction motions
within two years of the judgment and sentence. Accordingly, any
claims which do not constitute newly discovered evidence are
procedurally barred as untimely, and we therefore affirm those
claims.

        Newly discovered evidence claims are subject to a two-part
test:

        First, the evidence must not have been known by the trial
        court, the party, or counsel at the time of trial, and it
        must appear that the defendant or defense counsel could
        not have known of it by the use of diligence. Second, the
        newly discovered evidence must be of such nature that it
        would probably produce an acquittal on retrial.

Marek v. State, 14 So. 3d 985, 990 (Fla. 2009). Such claims must
be filed within two years of the time when the evidence could have
been discovered by the use of due diligence. Blake v. State, 152
So. 3d 66, 68 (Fla. 2d DCA 2014).



                                   3
     Although Appellant argues that three of his claims involve
newly discovered evidence, his arguments fail to satisfy the test
set out in Marek. First, Appellant argues that his wife can offer
newly discovered exculpatory testimony. However, this “new”
evidence is a statement given by his wife in deposition, and
Appellant asserts that he asked defense counsel to have her testify
regarding this evidence. As Appellant acknowledges that both he
and his attorney knew of this evidence before trial, it does not
constitute newly discovered evidence. See Marek, 14 So. 3d at 990.
Thus, Appellant’s claim is untimely.

     Next, Appellant argues that defense counsel was ineffective
for failing to move for dismissal when the two charged offenses
were based on the same conduct. This is not newly discovered
evidence, as Appellant raised this same argument in his 2016
motion to correct illegal sentence. Furthermore, as noted,
Appellant was not sentenced twice for the same conduct.

     Finally, Appellant argues that he recently discovered that
defense counsel failed to communicate pretrial plea offers ranging
from five to ten years in prison in exchange for a guilty plea, and
that he would have accepted such offers had he been so informed.
But Appellant gives no indication of how or when he came to know
of the purported plea offers. Further, Appellant’s claim is
conclusively refuted by the record, which shows that at the onset
of jury selection, the attorneys for both parties denied the existence
of any plea offers. Thus, the trial court did not err in summarily
denying Appellant’s motion for postconviction relief.

    Because all of Appellant’s claims are either procedurally
barred as untimely or conclusively refuted by the record, we affirm
the trial court’s order denying Appellant’s Motion for
Postconviction Relief.

    AFFIRMED.

ROBERTS and OSTERHAUS, JJ., concur.




                                  4
                _____________________________

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


Ruben Martinez, pro se, Appellant.

Ashley B. Moody, Attorney General, Tallahassee, for Appellee.




                               5
