PETER ANTHONY BORGHESE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A motion filed pursuant to Florida Rule of Criminal Procedure 3.850 is timely if the defendant loses control of the motion to prison officials within the filing window, even if received by the court later.
Borghese pleaded guilty and was sentenced in 1993. His conviction became final in November 1993, giving him two years to file a Rule 3.850 motion. His…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Finality Of Conviction cases and more on FLexlaw
PER CURIAM.
Peter Anthony Borghese (Borghese) appeals the denial of his first motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion as untimely. We reverse.
Borghese pleaded guilty to burglary of a structure and burglary of a dwelling. On October 13,1993, Borghese was sentenced as an habitual felony offender to ten years in prison. He took no appeal; his conviction thus became final on November 12, 1993. Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988) (holding that the two-year rule 3.850 filing window runs from the expiration of defendant’s thirty-day appeal period, despite that defendant did not appeal). Borghese had two years, that is, until November 12, 1995, to file a motion pursuant to Florida Rule of Criminal Procedure 3.850. Borghese moreover, because November 12, 1995 was a Sunday, had until Monday, November 13, 1995 to file his motion. Fla. R.Crim. P. 3.040.
The record shows that Borghese’s motion was notarized by a prison official on November 13, 1995, and received by the circuit court on November 15, 1995. The record thus supports Borghese’s allegation that he lost control of his motion on November 13, 1995. See Haag v. State, 591 So. 2d 614 (Fla.1992) (holding a rule 3.850 motion timely filed where the defendant lost control of the motion to prison officials within the two-year filing window). Borghese’s motion thus is timely.
We accordingly reverse and remand for consistent proceedings.
MINER, ALLEN and LAWRENCE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Bateman v. State, 764 So. 2d 769 (Fla. 1st DCA 2000)…s from the trial court’s denial of Appellant’s rule 3.850 motion on the ground that it was untimely filed. Appellant’s motion was properly filed within two years of the time that Appellant’s judgment and sentence became final. See Borghese v. State, 694 So. 2d 148 (Fla. 1st DCA 1997)(citing Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988)). Accordingly, we reverse the trial court’s order and remand for reconsideration of Appellant’s motion. REVERSED and REMANDED. BARFIELD, C.J., BOOTH and WOLF, JJ., CONC…
-
Goodroe v. State, 812 So. 2d 586 (Fla. 4th DCA 2002)…he evidence was deemed insufficient because there was no evidence that any drug residue was found on the homemade crack pipes, nor was there evidence that the defendant had any illegal drugs in his possession when arrested. See also Waters v. State, 694 So. 2d 148 (Fla. 1st DCA 1997)(reversing a conviction of possession of drug paraphernalia where defendant had a small piece of metal, identified at trial as a device commonly used to smoke controlled substances, but where no other evidence was introduced to sh…
-
Moore v. State (Fla. 2d DCA 2020)
Authorities Cited
- State v. Thurston McCLAIN, 591 So. 2d 614 (Fla. 1992)
- Haag v. State, 591 So. 2d 614 (Fla. 1992)
- Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988)