Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-1715 _____________________________ WILMER LYCANS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Marianne L. Aho, Judge. July 13, 2021 PER CURIAM. Wilmer Lycans appeals an order summarily denying his postconviction motion filed under Florida Rule of Criminal Procedure 3.850. The trial court denied the postconviction motion as untimely, successive, and lacking in merit. We affirm. In 2013, the State charged Lycans with eight counts of sexual battery of a child under twelve. The eight counts involved Lycans’ abuse of three of his stepchildren. After a three-day jury trial in which all three victims testified, the jury found Lycans guilty as charged. The trial court then designated him as a sexual predator and sentenced him to concurrent terms of life imprisonment on each count. After filing one unsuccessful postconviction motion, Lycans filed a second motion for postconviction relief. He alleged that the trial court erred and that his trial counsel was ineffective for failing to allow him to present an expert witness to testify as to his state of mind and mental capabilities during pretrial proceedings, during plea negotiations, and throughout trial. Lycans claimed that his “serious health issues” and medications that he was taking affected his decision-making capabilities, causing him to reject a fifteen-year plea deal offered by the State. Still, Lycans specifically acknowledged that he was “not arguing that an expert witness would have changed the outcome of his case.” After ordering the State to respond to the postconviction motion, the trial court summarily denied it. The court found that the motion was untimely because Lycans filed it more than two years after the judgment and sentence became final, and no exception under rule 3.850 applied. Second, the court determined that the motion was successive because Lycans alleged the same claims in his 2018 postconviction motion. That motion was denied, and Lycans did not appeal. Third, the trial court found that Lycans’ claim of trial court error was not cognizable in a rule 3.850 motion. And finally, the court found that Lycans’ claims lacked merit. This timely appeal follows. Our review of a trial court’s order summarily denying a postconviction claim is de novo. Flagg v. State, 179 So. 3d 394, 396 (Fla. 1st DCA 2015). When the appellant’s claim is facially invalid or conclusively refuted by the record, we will affirm. Id. We find no error here. First, Lycans’ claim of trial court error is procedurally barred. See Dunn v. State, 282 So. 3d 899, 903 (Fla. 1st DCA 2019). Lycans should have raised any such claim on direct appeal. See Smith v. State, 445 So. 2d 323, 325 (Fla. 1983) (“Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack.”). Second, Lycans’ claim of ineffective assistance of counsel is untimely. Rule 3.850(b) requires that a defendant seeking postconviction relief file any motion within two years of the judgment and conviction becoming final unless the defendant alleges one of three exceptions to the time limitation. See Martinez 2 v. State, 265 So. 3d 690, 692 (Fla. 1st DCA 2019). Lycans’ judgment and sentence became final on May 4, 2016, when this Court issued a mandate in the direct appeal. See Lycans v. State, 189 So. 3d 763 (Fla. 1st DCA 2016) (unpublished table decision). Lycans filed his motion on November 21, 2019, beyond the two-year limit. Rule 3.850(b)(1) provides for an exception when the facts on which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence. But that exception does not apply here. Lycans claims that he had serious health issues and that he was under the influence of several medications during pretrial proceedings, during plea negotiations, and throughout his trial. In support of his claim, Lycans points to medical records showing that he had been hospitalized and that he was taking several medications. But Lycans had actual knowledge of these records well before 2019. First, Lycans was the patient and knew of his own hospitalization and medications. Second, the State listed the medical records in its discovery response. Third, defense counsel referred to the medical records during closing argument at trial. Fourth, Lycans referred to the medical records in his 2018 postconviction motion. For these reasons, the exception under rule 3.850(b)(1) for newly discovered evidence does not apply. See Rodgers v. State, 288 So. 3d 1038, 1039–1040 (Fla. 2019) (finding no error when the trial court summarily denied a postconviction claim because the defendant’s gender dysphoria diagnosis was not newly discovered, and even if it had been, the defendant did not pursue the claim with due diligence.) Because Lycans filed his postconviction motion more than two years after his judgment and sentence became final, the trial court correctly dismissed the motion as untimely. See id. And thus we AFFIRM the order of the trial court. ROWE, C.J., and M.K. THOMAS and NORDBY, JJ., concur. 3 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Wilmer Lycans, pro se, Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee. 4