EARL L. BRADFORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Earl Bradford appeals the denial of his Rule 3.850 motion alleging ineffective assistance of counsel. The trial court refused to consider an amended motion presented at the evidentiary hearing, calling it untimely. The appellate court vacates and remands because the trial court erred in failing to consider the amended motion's claims together with the original motion.
The trial court erred in failing to consider the amended motion. Although the amended motion was untimely from a judicial administration standpoint, it was neither untimely in the jurisdictional sense nor successive, as it was presented before the trial court disposed of the original motion. The trial court should have continued the evidentiary hearing to consider both the original and amended motions together.
[1] A trial court errs by refusing to consider an amended motion for postconviction relief when the amended motion is filed within the jurisdictional time limits and before t…
[2] An amended motion for postconviction relief is not untimely if filed within two years following the issuance of the mandate on direct appeal and prior to the trial court'…
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Join FLexlaw to unlock all legal intelligence“The amended motion was neither untimely nor successive of the original motion; it was made within two years following the issuance of the mandate in the direct appeal, but before the trial court disposed of the original 3.850 motion.”
Establishes that the amended motion did not violate jurisdictional time requirements or succession rules for Rule 3.850 motions.
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Join FLexlaw to unlock all legal intelligenceBradford's conviction for robbery with a weapon was affirmed on direct appeal on November 23, 1994, with the mandate issued December 9, 1994. He timel…
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STEVENSON, Judge.
Appellant, Earl Bradford, appeals the denial of his rule 3.850 motion which alleged the ineffective assistance of his trial counsel. Because the trial court failed to consider the claims raised in a timely amendment to appellant’s motion, we vacate the trial court’s order and remand for a reconsideration of appellant’s motion and amended motion.
This court affirmed appellant’s conviction for robbery with a weapon on November 23, 1994. The mandate was issued on December 9, 1994. Appellant then filed a 3.850 motion seeking postconviction relief on the ground of ineffective assistance of counsel. On October 8, 1996, at the start of the evidentiary hearing on the motion, appellant brought to the court’s attention an amended 3.850 motion which alleged additional instances of ineffective assistance of counsel as well as other constitutional violations. Because appellant did not have access to a notary in prison, the trial court allowed him to swear to the alleged facts in open court. However, the trial court refused to consider the amended motion at that time, calling it “untimely.” Following the hearing, the trial court denied the original motion for postconviction relief. The transcript indicates that appellant intended to later file the amended motion with the clerk, but the record does not reveal what became of the amended 3.850 motion. On this appeal, appellant challenges the trial court’s refusal to consider his amended motion.
The amended motion was neither untimely nor successive of the original motion; it was made within two years following the issuance of the mandate in the direct appeal, but before the trial court disposed of the original 3.850 motion. However, while the amended motion was not untimely in the jurisdictional sense, it was untimely from the standpoint of judicial administration since it was first presented at the evidentiary hearing. Nevertheless, in this circumstance, the trial court erred in failing to continue the evidentiary hearing on the original 3.850 motion until such time as the claims raised in the amended motion could also be considered. See Shaw v. State, 654 So. 2d 608 (Fla. 4th DCA 1995); State v. Gunsby, 670 So. 2d 920, 924 (Fla.1996)(holding that a claim of ineffective assistance of counsel is properly considered with reference to the cumulative effect of counsel’s deficiencies).
Accordingly, we find that a proper disposition of appellant’s claims on remand requires the trial court to consider the totality of' appellant’s claims raised in both the original 3.850 motion and the amended motion.
VACATED AND REMANDED FOR FURTHER PROCEEDINGS.
FARMER and SHAHOOD, JJ., concur.
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Adalberto Ramos v. State, 178 So. 3d 941 (Fla. 4th DCA 2015)…filed pursuant to Florida Rule of Criminal Procedure 3.850. One of his claims is that the trial cohrt failed to consider his “amended” motion. We agree and reverse and remand for further review of both of appellant’s motions. See Bradford v. State, 701 So. 2d 899 (Fla. 4th DCA 1997) (holding that trial court erred in failing to continue the evidentiary hearing on the original 8.850 motion until such time as the claims raised in the amended motion could also be considered), The amended motion was first filed…
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Esau Watson v. State, 732 So. 2d 469 (Fla. 4th DCA 1999)…PER CURIAM. The trial court erred when it denied appellant’s motion to amend his motion for post-conviction relief as untimely filed. In Bradford, v. State, 701 So. 2d 899 (Fla. 4th DCA 1997), we held: [W]hile the amended motion was not untimely in the jurisdictional sense, it was untimely from the standpoint of judicial administration since it was first presented at the evidentiary hearing. Nevertheless, in this ci…
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Himes v. State, 53 So. 3d 1218 (Fla. 1st DCA 2011)…amend a timely filed rule 3.850 motion as long as the amended motion is also within the two-year rule 3.850 filing window. See Harris v. State, 826 So. 2d 340 (Fla. 2d DCA 2002); Beard v. State, 827 So. 2d 1021 (Fla. 2d DCA 2002); Bradford v. State, 701 So. 2d 899, 900 (Fla. 4th DCA 1997). The amended motion was filed within the two-year rule 3.850 filing window. The state has conceded that the trial court should have considered and ruled on the appellant’s amended motion in its order denying relief of the or…
Authorities Cited
- State v. Gunsby, 670 So. 2d 920 (Fla. 1996)
- Shaw v. State, 654 So. 2d 608 (Fla. 4th DCA 1995)