DONALD BROWER, SR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Donald Brower, Sr. (Brower) challenges an order denying as untimely his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.
Brower’s rule 3.850 motion was denied because it was filed more than two years after our decision in Brower’s direct appeal. We affirmed per curiam Brower’s direct appeal on May 10, 1994, and denied motion for rehearing on September 2, 1994. Brower v. State, 641 So. 2d 1348 (Fla. 1st DCA 1994) (table). The mandate however issued on September 20, 1994. It is the date of the mandate, and not the date of our decision, that opens the two-year window for filing a rule 3.850 motion. Ward v. Dugger, 508 So. 2d 778 (Fla. 1st DCA 1987). Brower’s rule 3.850 motion, filed on August 26, 1996, was within the two-year window, and thus was timely. We accordingly reverse the order below and remand this ease to the trial court to address Brower’s motion on the merits.
WEBSTER, MICKLE and LAWRENCE, JJ., concur.
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Sinclair v. State, 890 So. 2d 1240 (Fla. 1st DCA 2005)…50. The trial court denied the motion as untimely. However, because the appellant filed his motion within two years of his conviction and sentence becoming final, we reverse the summary denial and remand for further proceedings. See Brower v. State, 701 So. 2d 433, 433 (Fla. 1st DCA 1997). REVERSED AND REMANDED. ALLEN, DAVIS and BROWNING, JJ., Concur.…
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Monts v. State, 870 So. 2d 952 (Fla. 1st DCA 2004)…his Court on the authority of Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986), the state conceded that Appellant’s motion was timely because it was filed within two years of the date the mandate issued from this Court. See, e.g., Brower v. State, 701 So. 2d 433 (Fla. 1st DCA 1997). Accordingly, we reverse and remand for further consideration of Appellant’s postconviction motion. BARFIELD and LEWIS, JJ., concur.…
Authorities Cited
- Ward v. Dugger, 508 So. 2d 778 (Fla. 1st DCA 1987)