Charles Lewis BURR, Appellant, v. STATE of Florida, Appellee, 518 So. 2d 903

PER CURIAM. Charles Burr, under death warrant, appeals to this Court from the denial of his motion filed pursuant to rule 3.850 of the Florida Rules Of Criminal Procedure. He requests relief in the nature of a stay of execution, as well as a new trial and sentencing proceeding. We have jurisdiction, art. V., § 3(b)(1), Fla. Const., and affirm the judgment of the trial court. Burr was convicted on June 11, 1982, of first degree murder and robbery with a firearm. Following a jury recommendation of life, the trial court overrode the jury and imposed a sentence of death on Burr.

On February 14,1985, this Court affirmed both the conviction and the sentence, Burr v. State, 466 So.2d 1051 (Fla.1985), and issued its mandate on June 3, 1985. Burr filed a timely petition for writ of certiorari in the United States Supreme Court which was denied on October 7,1985. Burr v. Florida, 474 U.S. 879, 106 S.Ct. 201, 88 L.Ed.2d 170 (1985). Following the signing of a death warrant by Governor Martinez, Burr filed this 3.850 motion for post-conviction relief on September 23, 1987 in the trial court.

That court denied the motion because it was not timely filed, ruling that under rule 3.850 of the Florida Rules of Criminal Procedure, a motion for relief under that rule must be filed within “two years after the judgment and sentence become final.” Fla.R.Crim.P. 3.850. The trial court further held that the judgment and sentence became final upon the issuance of the mandate by the Florida Supreme Court. However, it was the intent of this Court, when it promulgated the rule, that the time should not begin to run until the writ of certiorari filed with the United States Supreme Court is finally determined.

Therefore, because it was filed less than two years after the United States Supreme Court denied certiorari in this case, this rule 3.850 motion is timely filed. The trial court, anticipating that this Court may elect to reach the merits of the motion, so ruled on those merits. The court denied the motion, ruling that some of the arguments were procedurally barred, and some were devoid of merit. We agree.

Those issues raised here that are procedurally barred include sufficiency of evidence, racial discrimination in the grand jury foreperson selection process, collateral crimes evidence, prosecutorial misconduct in closing argument, and improper override of the jury’s recommendation of life. These issues have been addressed, and disposed of on Burr’s direct appeal to this Court, and are thus not cognizable for review here. With the exception of the collateral crimes issue, no new information has been made available to this Court which would warrant a revisitation of those issues.

However, Burr has argued that his subsequent acquittal of one of the crimes to which witnesses testified at his trial, and the nolle pros of another renders the evidence of those acts inadmissible. This Court has held that evidence of collateral offenses which have been nolle prossed is admissible. Holland v. State, 466 So.2d 207 (Fla.1985). As to the subsequent acquittal, clearly, at the time the Williams rule evidence was admitted, it was not error to do so. This much had been settled on direct appeal.

There is no reason to suggest that the subsequent acquittal changes that admissibility subsequent to the trial. This Court will not render evidence retroactively inadmissible. Burr raises one issue which is not procedurally barred. He claims that trial counsel was ineffective for failing to object to allegedly inflammatory, unfairly prejudicial, and improper closing argument. We held on direct appeal that Burr’s allegation that the prosecutor’s closing argument was invalid was waived due to his attorney’s failure to timely object to the statements made by the prosecutor.

The record reveals that none of the statements, nor the combined effect of them warranted the granting of a new trial. It is not clear that the statements were even objectionable. Indeed, the one objection raised by counsel was correctly denied as the comments were fair comment upon the evidence, and not unduly inflammatory. 466 So.2d at 1054. It cannot be said that, under the guidelines of Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh’g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984), counsel was defective to the point of depriving Burr of the effective assistance of counsel. We hold that while the rule 3.850 motion was timely filed, it was devoid of merit. Accordingly, we affirm the circuit court’s denial of the rule 3.850 motion on its merits, and dissolve the stay of execution previously entered by this Court. It is so ordered. McDonald, C.J., and OVERTON, EHRLICH, GRIMES and KOGAN, JJ., concur. SHAW, J., concurs in result only with an opinion.

BARKETT, J., dissents with an opinion. . The circuit court found that because these issues should have been, and indeed were, litigated on direct appeal, they are not cognizable for review on a rule 3.850 motion. . Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).