MUJICA, SR.
v.
STATE OF FLORIDA
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Mujica appeals an order dismissing his motion for ineffective assistance of counsel and related postconviction relief petitions. The court affirms the dismissal but allows Mujica to refile after his direct appeal is final, clarifying the proper timing for postconviction motions.
The court affirmed the dismissal of the prematurely filed postconviction relief motions, but without prejudice, allowing Mujica to refile them after his direct appeal is final. The two-year period for filing a 3.850 motion begins upon issuance of the mandate from the direct appeal.
“A prematurely filed motion for postconviction relief should be dismissed by a trial court and may be refiled after the direct appeal is final.”
Establishes the proper treatment of prematurely filed postconviction motions—dismissal without prejudice and right to refile
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Join FLexlaw to unlock all legal intelligenceKervin Moreno Mujica, Sr. filed a motion for ineffective assistance of counsel and postconviction relief petitions (3.850/2254 and collateral review p…
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Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pasco County; Mary M. Handsel, Judge.
Kervin Moreno Mujica, Sr., pro se.
KHOUZAM, Judge.
The order on appeal is affirmed without prejudice to Mr. Mujica's right to refile the "Motion Ineffective Assistance of Counsel" and "Petition Introduction 3.850/2254" and to file the "Petition Collateral Review" in the trial court after his direct appeal is final. See Bunkley v. State, 800 So. 2d 663, 664 (Fla. 2d DCA 2001) ("A prematurely filed motion for postconviction relief should be dismissed by a trial court and may be refiled after the direct appeal is final."); see also Beaty v. State, 701 So. 2d 856, 857 (Fla. 1997) (holding the two-year period for filing a motion under Florida Rule of Criminal Procedure 3.850 begins to run upon the issuance of the mandate from a direct appeal). This opinion shall not be construed as commenting on the merits of these filings. Affirmed.
KELLY and BLACK, JJ., Concur. Opinion subject to revision prior to official publication.