ROGER BERNARD THOMAS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2001-09-12
No. 3D01-2121
Before SCHWARTZ, C.J., and GERSTEN, and FLETCHER, JJ.
793 So. 2d 1149 Florida District Court of Appeal, Third District (2001)

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.


Holding

The trial court erred in finding the post-conviction relief motion untimely filed.


Facts & Procedural History

Roger Thomas filed a motion for post-conviction relief. The trial court denied the motion as untimely.…

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.


Opinion of the Court
FLETCHER, Judge.

FLETCHER, Judge.

Roger Thomas appeals the trial court’s denial of his motion for post-conviction relief. We conclude that the trial court erred when it found Thomas’ motion to be untimely filed and declined to consider it on the merits.

Florida Rule of Criminal Procedure 3.850(b) states that no post-conviction relief “motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case.” The record indicates that Thomas appealed his final judgment of conviction and sentence, and that this court affirmed on September 1, 1999, with the mandate issuing on September 17, 1999. As the two-year limitation period within which to file a post-conviction motion does not begin to run until the appellate court issues its mandate on the direct appeal, Cabrera v. State, 721 So. 2d 1190 (Fla. 2d DCA 1998),1 and as this court issued its mandate in September, 1999, Thomas has until September, 2001 to file a post-conviction relief motion. Thus his motion filed on October 16, 2000 was timely, and the trial court should have reviewed the substantive claims therein.

Accordingly, we reverse and remand for the trial court to consider Thomas’s post-conviction relief motion on its merits.

Reversed and remanded.

. If a defendant files a petition for supreme court review of the result of his direct appeal, the time period for filing a motion for post-conviction relief does not begin to run until the petition has been determined. Gaskin v. State, 737 So. 2d 509 (Fla.1999); Barkett v. State, 728 So. 2d 792 (Fla. 1st DCA 1999).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw