CHARLES W. BRAY, III, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the dismissal of Bray's post-conviction motion and remanded for an evidentiary hearing to determine whether the motion was timely filed under the mailbox rule, rejecting the trial court's second dismissal without a hearing.
A post-conviction 3.850 motion that is timely under the mailbox rule must be afforded an evidentiary hearing to determine timeliness, and the trial court cannot dismiss it without conducting such a hearing when allegations of timely submission create a factual issue.
[1] When a post-conviction 3.850 motion's timeliness is challenged, allegations of timely submission that create a factual issue entitle the movant to an evidentiary hearing…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a 3.850 motion which is turned over to prison authorities for mailing within the two-year limitation period is timely even though it is not stamped by the court clerk until after the time limit has expired”
Explanation of the mailbox rule from Haag v. State, which governs when post-conviction motions are considered timely filed.
Charles W. Bray, III filed a post-conviction motion under Florida Rule of Criminal Procedure 3.850. The trial court dismissed the motion as untimely w…
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SHIVERS, DOUGLASS B., Senior Judge.
Charles W. Bray, III, challenges an order by which his post-conviction motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, was dismissed as untimely. We reverse and remand for an evidentiary hearing.
This is the second appeal in connection with Bray’s motion. In Bray v. State, 702 So. 2d 302 (Fla. 1st DCA 1997), we reversed with directions to the trial court to conduct an evidentiary hearing to determine whether the motion was timely filed in accordance with the mailbox rule articulated in Haag v. State, 591 So. 2d 614 (Fla.1992)(holding that a 3.850 motion which is turned over to prison authorities for mailing within the two-year limitation period is timely even though it is not stamped by the court clerk until after the time limit has expired). After remand, without conducting an evidentiary hearing the trial court again dismissed the motion, finding the allegations of timeliness to be insufficient. However, as stated in our earlier decision, we have found Bray’s allegations of timely submission sufficient to create an issue of fact, subject to proof at an evidentiary hearing. We reverse and remand again with specific instructions that appellant be afforded the opportunity at an evidentiary hearing to prove (by prison mail logs or otherwise) that his motion was timely filed. If timely, the motion shall be considered on its merits. REVERSED and REMANDED, with directions.
ERVIN and JOANOS, JJ., concur.
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Citator
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Jones v. State, 785 So. 2d 561 (Fla. 2d DCA 2001)…302 (Fla. 1st DCA 1997). Accordingly, on remand the trial court should hold an evidentiary hearing where Jones will be allowed to prove he timely created the postconviction document and entrusted it to the hands of prison officials. Bray v. State, 742 So. 2d 804 (Fla. 1st DCA 1998). Should Jones establish the timely entrustment of the document, and if the State then chooses to [*562] challenge Jones’ assertion that the motion was timely filed, we would point out that there is a rebuttable presumption that t…
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Melton v. State, 754 So. 2d 87 (Fla. 1st DCA 2000)…was prejudiced by an honest misunderstanding which contaminated the vol-untariness of the plea). The trial judge should not have resolved factual questions adversely to appellant without first holding an evidentiary hearing. See e.g. Bray v. State, 742 So. 2d 804, 804 (Fla. 1st DCA 1998) (requiring an evidentiary hearing where there is an unresolved issue of fact). Accordingly, we REVERSE and REMAND for the trial court to conduct an evidentiary hearing. The trial court may reconsider appointing counsel for…
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Griffin v. State, 767 So. 2d 467 (Fla. 3d DCA 1999)…se inmate to timely assert and prove that the petition was delivered to prison authorities within the requisite time limits. Haag v. State, 591 So. 2d at 617, n. 3. (Emphasis added.) The right to an evidentiary hearing was cited in Bray v. State, 742 So. 2d 804, 23 Fla. L. Weekly D1897, 1898 (Fla. 1st DCA 1998) wherein the court concluded: Iii Bray v. State, 702 So. 2d 302 (Fla. 1st DCA 1997), we reversed with directions to the trial court to conduct an eviden-tiary hearing to determine whether the motion…
Authorities Cited
- State v. Thurston McCLAIN, 591 So. 2d 614 (Fla. 1992)
- Haag v. State, 591 So. 2d 614 (Fla. 1992)
- Bray v. State, 702 So. 2d 302 (Fla. 1st DCA 1997)