VINCENT F. GALLO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Vincent Gallo appealed the trial court's dismissal of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The appellate court reversed, holding that the motion was timely and that Gallo's custody status at the time of filing, not hearing, controls the jurisdictional requirement.
The motion was not jurisdictionally barred. The court must examine the defendant's custody status at the time the motion was initially filed, not at the time of the hearing. Additionally, a judgment becomes final for purposes of Rule 3.850 when direct review proceedings conclude, which in this case occurred when the Florida Supreme Court issued its mandate answering the certified question, making the motion timely.
[1] A motion for postconviction relief is properly considered based on the defendant's custody status at the time the motion was filed, not at the time of the hearing.
[2] A motion for postconviction relief is timely if filed within two years of the conclusion of all direct review proceedings, including discretionary review sought in the Fl…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“in determining whether appellant was "in custody" for purposes of rule 3.850, the trial court should have considered appellant's status at the time he initially filed the motion, rather than his status at the time of the hearing after remand”
Establishes the controlling standard that custody status at filing, not hearing, determines jurisdiction over Rule 3.850 motions
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Join FLexlaw to unlock all legal intelligenceGallo was convicted and sentenced, and this court affirmed his conviction with a certified question to the Florida Supreme Court. Gallo filed a motion…
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PER CURIAM.
Appellant/Defendant/Gallo (“Gallo”) appeals the trial court’s dismissal of Gallo’s motion for postconviction relief, pursuant to Fla.R.Crim.P. 3.850. For the following reasons, we reverse the trial court’s denial of Gallo’s motion for postconviction relief and remand this case to the trial court for proceedings consistent with this opinion.
The trial court denied Gallo’s motion for postconviction relief for two reasons. First, the trial court dismissed the motion because even though Gallo was in custody at the time the motion was filed, he was no longer in custody at the time of the hearing on the motion. In Bolyea v. State, 508 So. 2d 457 (Fla. 2d DCA 1987), aff'd on other grounds, 520 So. 2d 562 (Fla.1988), our sister court stated:
We first observe that in determining whether appellant was “in custody” for purposes of rule 3.850, the trial court should have considered appellant’s status at the time he initially filed the motion, rather than his status at the time of the hearing after remand (emphasis added).
508 So. 2d at 458. Additionally, in affirming the denial of the defendant’s motion for post conviction relief in Levoyant v. State, 561 So. 2d 343 (Fla. 2d DCA 1990), the court stated:
... there was no showing that as a result thereof he continued to be held in state custody and was in such custody at the time his 3.850 motion was filed (emphasis added).
561 So. 2d at 344. Thus, based on Bolyea and Levoyant, we conclude that since Gallo was in custody at the time his motion for postconviction relief was filed, the trial court erred in dismissing his motion.
Second, the trial court dismissed Gallo’s motion for postconviction relief concluding that the motion was untimely because it was filed more than two years after this court affirmed Gallo’s conviction with an opinion certifying a question to the Florida Supreme Court. See Gallo v. State, 472 So. 2d 491 (Fla. 4th DCA 1985). However, we conclude that the motion was timely because it was filed within two years after the Florida Supreme Court issued its mandate answering the certified question of great public importance from this court. See Gallo v. State, 491 So. 2d 541 (Fla.1986). In discussing when a judgment and sentence become final for purposes of rule 3.850, the court in Ward v. Dugger, 508 So. 2d 778 (Fla. 3d DCA 1987), stated:
... We recognize that proceedings seeking direct review of a conviction and sentence may well take most or all of the two years permitted by the rule, especially when there is affirmance on appeal and discretionary review is sought in the Florida Supreme Court' ... We therefore conclude that the judgment and sentence “become final” for purposes of Rule 3.850 when any such direct review proceeding have concluded and jurisdiction to entertain a motion for postconviction relief returns to the sentencing court.
508 So. 2d at 779.
Direct review of the instant case was not completed until the Florida Supreme Court issued its mandate answering the certified question of great public importance. Therefore, Gallo’s motion for postconviction relief was timely filed since it was filed within two years from the time the Florida Supreme Court issued its mandate.
Accordingly, we reverse the trial court’s denial of Gallo’s motion for postconviction relief, and remand this case to the trial court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
ANSTEAD, GUNTHER and WARNER, JJ., concur.
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Cited By
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Rector v. State, 668 So. 2d 1104 (Fla. 4th DCA 1996)…assistance of counsel. A judgment and sentence becomes final and the two year time limit of Rule 3.850(b) commences when the Florida Supreme Court disposes of a petition for review of the district court’s decision on direct appeal. Gallo v. State, 571 So. 2d 78, 79 (Fla. 4th DCA 1990); Brown v. State, 617 So. 2d 1105 (Fla. 1st DCA 1993). Furthermore, Rule 3.040, Florida Rules of Criminal Procedure, provides that in computing the two year time limit, the day of the act or event from which the designated per…
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Brown v. State, 617 So. 2d 1105 (Fla. 1st DCA 1993)…own was dicta, as appellant’s motion for post-conviction relief was untimely whether measured from issuance of mandate or denial of his appeal to the supreme court of our decision. Further, the Ward holding appears to be correct. See Gallo v. State, 571 So. 2d 78 (Fla. 4th DCA 1990); cf. Burr v. State, 518 So. 2d 903 (Fla.1987) vacated on other grounds, 487 U.S. 1201, 108 S.Ct. 2840, 101 L.Ed.2d 878 (1988), opinion on remand, 550 So. 2d 444 (Fla.1989), vacated, 496 U.S. 914, 110 S.Ct. 2608, 110 L.Ed.2d 629 (…
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Ortiz v. State, 4 So. 3d 794 (Fla. 4th DCA 2009)…orrect that the time for filing this rule 3.850 motion was tolled until the direct review proceedings were concluded. See Mullins v. State, 974 So. 2d 1135 (Fla. 3d DCA 2008); Perkins v. State, 845 So. 2d 273, 274 (Fla. 2d DCA 2003); Gallo v. State, 571 So. 2d 78 (Fla. 4th DCA 1990). On appeal, the state does not dispute that the motion was timely filed. Accordingly, we reverse the circuit court’s order and remand this ease for the court to consider the 3.850 motion on the merits. GROSS, C.J., MAY and DA…
Authorities Cited
- Ward v. Dugger, 508 So. 2d 778 (Fla. 1st DCA 1987)
- State v. Bolyea, 520 So. 2d 562 (Fla. 1988)
- Gallo v. State, 491 So. 2d 541 (Fla. 1986)
- Bolyea v. State, 508 So. 2d 457 (Fla. 2d DCA 1987)
- Leyda Fidalgo v. Fidalgo, 472 So. 2d 491 (Fla. 3d DCA 1985)
- Clerhat Levoyant v. State, 561 So. 2d 343 (Fla. 2d DCA 1990)