HORACE JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A facially sufficient claim of timely filing a postconviction motion requires an evidentiary hearing.
Jones alleged he timely filed a postconviction motion by having it notarized by a prison employee. The trial court denied the motion as untimely based…
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PER CURIAM.
Horace Jones appeals the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court’s order denied Jones’ claim that he had timely filed his motion for postconviction relief on May 27,1998. Jones asserts he timely had the motion notarized by a prison employee who deposited the motion for mailing. The court found that its records demonstrated that no such motion was ever filed with the clerk of the court.
Jones filed two letters with the court during April and May of 2000. In these letters Jones alleged that he had filed a rule 3.850 motion in March of 1998. He attached the motion for postconviction relief for the court to review. In the interest of justice, the court treated these letters as a motion for postconviction relief and denied the motion as untimely based on the record in the court file. Jones’ allegation that he timely filed the motion under Haag v. State, 591 So. 2d 614 (Fla. 1992), when he had it notarized by a Department of Corrections employee, is a facially sufficient claim requiring an evidentiary hearing. Bray v. State, 702 So. 2d 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 challenge Jones’ assertion that the motion was timely filed, we would point out that there is a rebuttable presumption that the document was timely filed based on the date reflected in the certificate of service. Thompson v. State, 761 So. 2d 324 (Fla.2000).
Reversed and remanded with directions.
WHATLEY, A.C.J., and NORTHCUTT and CASANUEVA, JJ., concur.
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Pagan v. State, 899 So. 2d 1203 (Fla. 2d DCA 2005)…e mailbox rule. [*1205] Under these circumstances, we conclude that Pagan’s allegation that he timely filed the original motion by delivering it to prison officials is a facially sufficient claim requiring an evidentiary hearing. See Jones v. State, 785 So. 2d 561, 561 (Fla. 2d DCA 2001) (remanding for an evidentiary hearing to determine whether the defendant timely created the postconviction document and entrusted it to prison officials). If Pagan establishes the timely entrustment of his motion, and if the…
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Mathews v. State, 958 So. 2d 1104 (Fla. 4th DCA 2007)…original motion under the mailbox rule is a facially sufficient claim requiring an evidentiary hearing, we reverse and remand for the trial court to hold an evidentiary hearing. See Pagan v. State, 899 So. 2d 1203 (Fla. 2d DCA 2005); Jones v. State, 785 So. 2d 561 (Fla. 2d DCA 2001); Bray v. State, 702 So. 2d 302 (Fla. 1st DCA 1997). Reversed and Remanded with directions. POLEN, TAYLOR and MAY, JJ., concur. . In his motion for rehearing, appellant stated that the certificate of service is dated February 8,…
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Valencia v. State, 850 So. 2d 607 (Fla. 4th DCA 2003)…e prison officials, our opinion does not mean that the court must inquire into whether every late-filed pro se petition meets the test of the mailbox rule.” Id. at 617 n. 3. In Doty v. State, 792 So. 2d 1248, 1249 (Fla. 2d DCA 2001), Jones v. State, 785 So. 2d 561, 561 (Fla. 2d DCA 2001), and Bray v. State, 702 So. 2d 302, 302 (Fla. 1st DCA 1997), cases in which an evidentiary hearing was conducted, the defendants attached affidavits and other documents attesting the delivery of their motions to the prison of…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Thurston McCLAIN, 591 So. 2d 614 (Fla. 1992)
- Haag v. State, 591 So. 2d 614 (Fla. 1992)
- Thompson v. State, 761 So. 2d 324 (Fla. 2000)
- Bray v. State, 702 So. 2d 302 (Fla. 1st DCA 1997)
- Bray v. State, 742 So. 2d 804 (Fla. 1st DCA 1998)