LAWRENCE MCGEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lawrence McGee sought postconviction relief under Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of trial counsel. The trial court summarily denied his motion as untimely, but the appellate court reversed, holding that the two-year filing deadline begins thirty days after sentencing (the appeal period), not on the date of sentencing itself.
The court held that the judgment and sentence do not become final for purposes of the two-year Rule 3.850 deadline until the thirty-day period for filing a direct appeal has expired. Consequently, McGee's motion filed on September 23, 1996, was timely because it was filed within thirty days after the judgment became final on approximately September 13, 1994.
[1] A judgment and sentence imposed pursuant to a plea, from which no direct appeal has been taken, becomes final for the purpose of calculating the two-year time limitation…
[2] A trial court errs in summarily denying a motion for postconviction relief solely on the basis of untimeliness without properly calculating the finality of the judgment a…
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Join FLexlaw to unlock all legal intelligence“judgment and sentence would therefore not become final until that period expired without the filing of an appeal”
Establishes that the thirty-day appeal period must expire before a judgment becomes final for Rule 3.850 timeliness purposes, even when no appeal is actually filed
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Join FLexlaw to unlock all legal intelligenceMcGee pleaded no contest to trafficking in cocaine on September 13, 1994, and was sentenced to ten years imprisonment. He did not file a direct appeal…
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LAZZARA, Judge.
The appellant, William McGee, seeks review of the trial court’s summary denial without attachments of a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because we conclude that the trial court erroneously denied the motion on the sole basis that it was untimely filed, we reverse and remand for further proceedings.
On September 13, 1994, the appellant pleaded no contest to the offense of trafficking in cocaine and was sentenced to a term of ten years imprisonment. He did not file a direct appeal. On September 23, 1996, the appellant filed a properly sworn motion asserting in multiple claims that because of the ineffectiveness of trial counsel he was entitled to have his plea and conviction set aside and to proceed to a trial on the merits. The trial court did not consider the merits of the motion but instead summarily denied it without attachments because it concluded that the motion was untimely filed.
The trial court’s reasoning, as reflected in its order, was as follows:
Rule 3.850 requires that a motion for postconviction relief be filed with the court no later than two years from the date that the judgment and sentence in question become final. As the defendant did not appeal his conviction and sentence, they became final on September 13, 1994. The defendant’s postconviction motion therefore had to have been filed no later than September 13,1996.
We conclude, in accord with the well-established law of Florida, that the trial court erred in its analysis of the timeliness of appellant’s motion.
In Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988), the court rejected the state’s argument that because Gust did not appeal a sentence imposed after a plea, his judgment and sentence became final on the date of sentencing for purposes of calculating the two-year time limitation of rule 3.850. It concluded, instead, that because Florida Rule of Appellate Procedure 9.140(b)(2) afforded Gust thirty days from the date of sentencing in which to appeal, his “judgment and sentence would therefore not become final until that period expired without the filing of an appeal.” Id. at 643. Other district courts of appeal, including our own, have relied on the reasoning of Gust in concluding that a motion for postconvietion relief challenging the validity of a judgment and sentence imposed pursuant to a plea from which 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, it must attach to its order those portions of the record which conclusively establish that the appellant is entitled to no relief as to the claims advanced or it must explain why those claims cannot appropriately be considered under rule 3.850. If, however, the trial court determines that the record does not conclusively refute one or more of the appellant’s claims which are properly encompassed within the rule, it must conduct an evidentiary hearing as to the unrefuted claim or claims. We remind the appellant that in the event he is aggrieved by the trial court’s subsequent order, he must appeal within thirty days of the order’s rendition.
Reversed and remanded with directions.
DANAHY, A.C.J., and PATTERSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Loomis v. State, 691 So. 2d 34 (Fla. 2d DCA 1997)…ellant is entitled to no relief as to the claims advanced along with its reasons for so concluding. Alternatively, it must explain why those claims are facially insufficient or cannot be appropriately considered under rule 3.850. See McGee v. State, 684 So. 2d 241, 242 (Fla. 2d DCA 1996). If, however, the trial court determines that the record does not conclusively refute one or more of the appellant’s claims which are properly brought under the rule, then it must conduct an evidentiary hearing as to the unre…
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Anderson v. State, 862 So. 2d 924 (Fla. 2d DCA 2003)…1997 Anderson’s motion would be untimely since it was not filed within two years of the date when the time period for taking an appeal of his 1995 judgments and sentences had expired and the judgments and sentences became final. See McGee v. State, 684 So. 2d 241, 242 (Fla. 2d DCA 1996). [*925] However, at the time his 1995 judgments and sentences became final, Anderson had no way of knowing that later the DOC would revoke the prison credit previously recognized. Once that occurred in November 1999, Anderson…
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Skeens v. State, 853 So. 2d 494 (Fla. 2d DCA 2003)…ed after his second direct appeal (Skeens II), the direct appeal process ended and his judgment and sentence became final on December 13, 2000, when the time expired for the filing of a direct appeal from his second resentencing. See McGee v. State, 684 So. 2d 241, 242 (Fla. 2d DCA 1996) (holding that a judgment and sentence which are not appealed become final when “the thirty-day period for taking an appeal has expired”). Accordingly, Skeens had until December 13, 2002, to file a timely rule 3.850 motion. S…1 / 2
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988)
- Caracciolo v. State, 564 So. 2d 1163 (Fla. 4th DCA 1990)
- Ramos v. State, 658 So. 2d 169 (Fla. 3d DCA 1995)
- Dixon v. State, 593 So. 2d 1186 (Fla. 2d DCA 1992)