RONALD NAPOLITANO, 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.
The court held that the trial court erred in summarily denying the motion for post-conviction relief as untimely.
Appellant filed a motion for post-conviction relief, which the trial court summarily denied as untimely. The state agreed the denial was erroneous bec…
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 Presumption Of Mailing cases and more on FLexlaw
PER CURIAM.
Appellant, Ronald Napolitano, appeals from the summary denial of his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.
Appellant entered a plea of nolo conten-dere and was sentenced to seven years in prison on April 24, 1998. He did not appeal, but filed the instant motion on June 8, 2000. The state agrees that the trial court erred in summarily denying the mo tion as untimely, as the motion was acknowledged before a notary on May 23, 2000, and appellant’s certificate of service shows the same date.
Appellant’s conviction and sentence became final on May 26,1998,1 when the time within which he could have filed an appeal expired. See Caracciolo v. State, 564 So. 2d 1163, 1164 (Fla. 4th DCA 1990); Ramos v. State, 658 So. 2d 169, 170 (Fla. 3d DCA 1995); Gust v. State, 535 So. 2d 642, 643 (Fla. 1st DCA 1988). Therefore, appellant had until May 26, 2000, in which to file a rule 3.850 motion. His motion should be treated as timely filed on May 23, 2000, the date he apparently turned it over to prison authorities for mailing. See Thompson v. State, 761 So. 2d 324, 325 (Fla.2000). The state admits it cannot rebut the presumption that appellant placed his motion in the hands of prison officials on May 23, 2000, because appellant’s institution does not maintain logs of outgoing mail. See also Rector v. State, 668 So. 2d 1104 (Fla. 4th DCA 1996) (holding that post-conviction motion that is notarized on a certain date is deemed filed on that date).
Accordingly, we .reverse and remand for the trial court to consider the merits of appellant’s post-conviction motion.
STEVENSON, GROSS and TAYLOR, JJ., concur. . May 24, 1998 was a Sunday; May 25, 1998 was Memorial Day.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Thompson v. State, 761 So. 2d 324 (Fla. 2000)
- 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)
- Rector v. State, 668 So. 2d 1104 (Fla. 4th DCA 1996)