ANTHONY CARACCIOLO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Appellant seeks review of a denial of his rule 3.850 motion below. This court on December 6, 1989, had per curiam affirmed the trial court’s denial of appellant’s motion on the basis that the motion was untimely filed. In his motion for rehearing, appellant called to our attention the authority of Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988). Gust appears to be the only authority in Florida on this point, and supports appellant’s position that even though he pled guilty and waived his right to appeal, he may still file a rule 3.850 motion within two years from the date of sentencing, plus thirty days for appeal. Based on appellant’s argument, rehearing was granted and we have now considered the matter on the merits.
Having determined that the appellant has failed to demonstrate any error on the part of the trial court in denying his 3.850 motion, appellant’s convictions and sentences are, therefore, affirmed.
LETTS, WALDEN and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Ramos v. State, 658 So. 2d 169 (Fla. 3d DCA 1995)…tion relief is essentially a motion to set aside the plea, and no previous appeal has been taken, the judgment and sentence do not become “final” for purposes of the rule until the thirty-day period for filing an appeal expires. Caracciolo v. State, 564 So. 2d 1163 (Fla. 4th DCA 1990); Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988). In this case, Ramos’s May 18, 1992, judgment and sentence did not become final until June 17, 1992, thirty days later. Ramos’ May 24th, 1994, motion was therefore timely filed w…
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McGEE v. State, 684 So. 2d 241 (Fla. 2d DCA 1996)…no appeal has been taken does not become final under rule 3.850 until the thirty-day period for taking an appeal has expired. Ramos v. State, 658 So. 2d 169 (Fla. 3d DCA 1995); Dixon v. State, 593 So. 2d 1186 (Fla. 2d DCA 1992); Caracciolo v. State, 564 So. 2d 1163 (Fla. 4th DCA 1990). Accordingly, we reverse the trial court’s summary finding of untimeliness and remand with directions that it consider the merits of appellant’s motion. In the event that the trial court again denies relief on a summary basis, i…
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Rincon v. State, 996 So. 2d 922 (Fla. 4th DCA 2008)…nd sentence become final”). Because Rincon did not appeal his conviction and sentence, the time limit for filing a 3.850 motion began to run when the time for filing a notice of appeal expired, on or about February 26, 2005. See Caracciolo v. State, 564 So. 2d 1163 (Fla. 4th DCA 1990). Although the original motion was filed on the last day of the two-year time limit, the trial court could not consider the untimely July 2007 amended motion pursuant to rule 3.850. Cf. Gaskin v. State, 737 So. 2d 509, 517-18 (Fla…
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- Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988)