PAUL ALLEN DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Paul Allen Davis appealed the denial of his postconviction relief motion under Florida Rule of Criminal Procedure 3.850. The court affirmed the rejection of his ineffective assistance of counsel claim but reversed the denial based on timeliness, holding the motion was timely filed within two years of when the judgment became final.
The court held that Davis's postconviction motion was timely filed within two years of when the judgments and sentences became final on June 19, 1991. The trial court erred in denying the motion as untimely without addressing the merits of Davis's factual basis claim.
[1] A motion for postconviction relief alleging ineffective assistance of counsel is properly denied when the record conclusively refutes the claim.
[2] A motion for postconviction relief is timely if filed within two years after the judgment and sentence become final.
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Join FLexlaw to unlock all legal intelligence“A motion for postconviction relief may be filed within two years after the judgment and sentence become final.”
Establishes the applicable timeliness standard for postconviction motions under Florida Rule of Criminal Procedure 3.850.
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Join FLexlaw to unlock all legal intelligenceDavis filed a postconviction relief motion alleging ineffective assistance of trial counsel for failure to investigate a voluntary intoxication defens…
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WHATLEY, Judge.
Paul Allen Davis challenges the order denying his motion for posteonvietíon relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the order insofar as it rejected Davis’s claim of ineffective assistance of trial counsel. We reverse the order insofar as it denied Davis’s contention that there was no factual basis to support the charges to which he pleaded.
In his motion for postconviction relief, Davis alleged that his trial counsel was ineffective because she failed to investigate a voluntary intoxication defense. After conducting an evidentiary hearing on this issue, the trial court entered an order finding that this allegation was without merit. Because the record conclusively refutes Davis’s claim, we affirm the denial of the motion for post-conviction relief on this ground. See Arroyo v. State, 673 So. 2d 919 (Fla. 2d DCA 1996).
In a separate order, the trial court noted that the remaining ground in his motion, i.e., that there was no factual basis to support the charges, was not addressed at the evidentiary hearing because the transcripts of the plea colloquy had not been delivered to the court. It ordered the state attorney to respond to the motion within 30 days. Thereafter, the trial court entered an order denying the motion for postconviction relief because it was untimely filed. This was error. A motion for postconviction relief may be filed within two years after the judgment and sentence become final. Fla.R.Crim.P. 3.850; Dean v. State, 644 So. 2d 122 (Fla. 2d DCA 1994), review denied, 654 So. 2d 918 (Fla.1995). If the motion is essentially a motion to set aside the plea and no previous appeal has been filed, the judgment and sentence become final when the 30-day period for filing the appeal has expired. Ramos v. State, 658 So. 2d 169 (Fla. 3d DCA 1995); Caracciolo v. State, 564 So. 2d 1163 (Fla. 4th DCA 1990); Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988).
In the present case, the judgments were filed on April 1,1991, and the sentences were filed on May 20, 1991. No appeal was filed. Therefore, the judgments and sentences became final on June 19,1991. The motion for postconviction relief was then timely filed on June 17, 1993, within two years of the date that the judgments and sentences became final. Consequently, the trial court erred in failing to address the merits of Davis’s claim that there was no factual basis to support the charges against him. See Arroyo, 673 So. 2d 919. Accordingly, we remand for the trial court to consider this ground of the motion.
If the trial court elects to summarily deny the motion, it shall attach such portions of the record which conclusively refute Davis’s allegations. Any party aggrieved by the subsequent action of the trial court must file a notice of appeal within thirty days to obtain appellate review.
Affirmed in part, reversed in part, and remanded.
FRANK, A.C.J., and PARKER, J., concur.
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Gisi v. State, 135 So. 3d 493 (Fla. 2d DCA 2014)…thirty-day period for filing an appeal expired. See Snipes v. State, 843 So. 2d 1043, 1044 (Fla. 2d DCA 2003); Ross v. State, 947 So. 2d 699, 701 (Fla. 4th DCA 2007); see also Westley v. State, 903 So. 2d 312, 313 (Fla. 2d DCA 2005); Davis v. State, 687 So. 2d 292, 293 (Fla. 2d DCA 1997). Thus, Gisi had until June 5, 2012, to file a timely postconviction motion, so his April 20, 2012, motion was timely. Even though the motion was timely filed, it was facially insufficient for failure to contain an oath. See…
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Westley v. State, 903 So. 2d 312 (Fla. 2d DCA 2005)…e were entered on March 11, 2002. Although Westley did not file a direct appeal, his time for filing it expired on April 10, 2002. Therefore, Westley’s two-year time limit for filing a rule 3.850 motion expired on April 10, 2004. See Davis v. State, 687 So. 2d 292, 293 (Fla. 2d DCA 1997). The trial court acknowledged that the date stamped on the face of Westley’s motion was April 10, 2004, but deemed the date stamped on the motion’s envelope, April 13, 2004, as the filing date because it contained a prison o…
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Armstrong v. State, 148 So. 3d 127 (Fla. 2d DCA 2014)…When no appeal is filed, finality occurs thirty days after rendition of the judgment and sentence, which is the date on which the time for filing the notice of appeal expires. Westley v. State, 903 So. 2d 312, 313 (Fla. 2d DCA 2005); Davis v. State, 687 So. 2d 292, 293 (Fla. 2d DCA 1997). Armstrong’s judgment and sentence were rendered on March 3, 2010. Because Armstrong did not file a notice of appeal, his judgment and sentence were final on April 2, 2010, and Armstrong’s February 29, 2012, motion was file…
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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)
- Dean v. State, 644 So. 2d 122 (Fla. 2d DCA 1994)
- Arroyo v. State, 673 So. 2d 919 (Fla. 2d DCA 1996)