RANDY HILBERT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Randy Hilbert appealed the denial of his post-conviction motion for relief based on alleged ineffective assistance of counsel. The trial court dismissed the motion as untimely, but the appellate court reversed, holding that the motion was timely filed within two years after the appellate process was completed.
Hilbert's motion was timely filed. The judgment and sentence do not become final until the appellate process is completed, which in this case occurred when the appellate court's mandate issued on November 6, 1986. Therefore, the motion filed on November 2, 1988, was within the two-year deadline.
[1] A motion for postconviction relief is timely if filed within two years after the appellate process has been completed.
[2] The finality of a judgment and sentence for purposes of filing a postconviction relief motion occurs upon the issuance of the appellate court's mandate.
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Join FLexlaw to unlock all legal intelligence“the judgment and sentence do not become final until the appellate process has been completed”
Establishes the controlling legal standard for when the two-year filing deadline begins to run under Rule 3.850
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Join FLexlaw to unlock all legal intelligenceHilbert was convicted of sexual battery on a child and sentenced to life imprisonment with a 25-year mandatory minimum. The judgment became final on J…
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ORFINGER, Judge.
The trial court denied defendant’s motion for post conviction relief under Florida Rule of Criminal Procedure 3.850 on the ground that the petition was not timely filed, and indicated in its order that it would entertain no motion for rehearing. Defendant appeals and we reverse.
Defendant was tried and convicted of sexual battery on a child, and sentenced to life imprisonment with a mandatory minimum incarceration of 25 years. The judgment of conviction became final on January 14, 1986. Defendant appealed to this court which affirmed the conviction, the mandate issuing on November 6, 1986. Defendant’s motion for post conviction relief was filed November 2,1988, and alleges six different instances of what defendant asserts constituted ineffective assistance of counsel at trial. Concluding that the motion for relief was not timely filed, the trial court denied relief without considering the merits of the motion.
Except under circumstances not applicable here, a motion for post conviction relief must be filed within two years “after the judgment and sentence become final.” Fla.R.Crim.P. 3.850, supra. The Rule has been interpreted to mean that the judgment and sentence do not become final until the appellate process has been completed. Burr v. State, 518 So. 2d 903 (Fla.1987), vacated on other grounds, — U.S. -, 108 S.Ct. 2840, 101 L.Ed.2d 878 (1988). Here, this court was the last step in the appellate process, and our mandate issued on November 6, 1986. Thus, the motion for post conviction relief, filed November 2, 1988 was timely and should have been considered by the court.
We reverse the order which denied relief because of untimeliness, and remand the case to the trial court. Because the motion is not legally insufficient on its face, upon remand the trial court shall attach a copy of that portion of the files and record in the case which conclusively show that defendant is entitled to no relief, if that be the case, or hold an evidentiary hearing after receiving a response to the motion or other pleading from the state, as provided for in the Rule.
REVERSED AND REMANDED.
SHARP, C.J. and DANIEL, J., concur.
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Huff v. State, 569 So. 2d 1247 (Fla. 1990)…no writ of certiorari is filed with the United States Supreme Court, the two-year period for filing a motion pursuant to rule 3.850 commences when this Court issues mandate. See Scull v. State, 569 So. 2d 1251 (Fla.1990). See also Hilbert v. State, 540 So. 2d 227 (Fla. 5th DCA 1989); Ward v. Dugger, 508 So. 2d 778 (Fla. 1st DCA 1987). In the instant case, mandate issued on December 2, 1986. Pursuant to rule 2.030(b)(5), Florida Rules of Judicial Administration, and rule 9.340(a), Florida Rules of Appellate P…
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Jones v. State, 602 So. 2d 606 (Fla. 1st DCA 1992)…State, 577 So. 2d 644, 645 (Fla. 1st DCA), review denied, 591 So. 2d 180 (Fla.1991); Austin v. State, 527 So. 2d 867, 868 (Fla. 1st DCA), review denied, 536 So. 2d 243 (Fla.1988); Ward v. Dugger, 508 So. 2d 778 (Fla. 1st DCA 1987); Hilbert v. State, 540 So. 2d 227 (Fla. 5th DCA 1989). The order indicates the trial court concluded the judgment and sentence became final in July 1988, upon resentencing. Since an appeal was taken following retrial, see Jones II, the rule 3.850 period began to run upon issuance o…
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Brown v. State, 577 So. 2d 644 (Fla. 1st DCA 1991)…filed within “two years after the judgment and sentence become final.” Fla.R.Crim.P. 3.850. That provision has been interpreted to mean that the judgment and sentence do not become final until appellate proceedings have concluded. Hilbert v. State, 540 So. 2d 227 (Fla. 5th DCA 1989) (date of mandate); Austin v. State, 527 So. 2d 867 (Fla. 1st DCA 1988), rev. denied, 536 So. 2d 243 (Fla. 1988); Ward v. Dugger, 508 So. 2d 778 (Fla. 1st DCA 1987). The final step in the appellate process here occurred on May 22,…
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- Burr v. State, 518 So. 2d 903 (Fla. 1987)