Acosta v. Florida Dept. of Corrections

Upon consideration, Acosta’s appeal from the order denying his motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850, is procedurally barred since the motion was both untimely filed and an abuse of process. Spaziano v. State, 570 So.2d 289 (Fla.1990); Bertolotti v. State, 565 So.2d 1343 (Fla.1990). Acosta’s petition for writ of mandamus and/or certiorari is dismissed because it is procedurally barred based upon this Court’s prior disposition in Case No. 93-430. Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975). Further, turning to the merits, the issue has been decided against petitioner-appellant in this Court’s Case No. 93-430, and in Case [991] No. 93-1044 in the Second Judicial Circuit, Leon County, Florida. See also Dugger v. Rodrick, 584 So.2d 2 (Fla.1991), from which the instant case is indistinguishable. SCHWARTZ, C.J., and GERSTEN, J., concur. COPE, J., concurs with all of the Court’s order except for the first sentence and concurs in the denial of relief.