RICO L. CARGLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
The appellant challenges the trial court’s order denying as untimely filed his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the appellant’s motion was filed within two years of the date that the supreme court disposed of the appellant’s petition for review of this Court’s decision on direct appeal, the appellant’s motion is timely. See Brown v. State, 617 So. 2d 1105, 1106 (Fla. 1st DCA 1993); see also Cargle v. State, 770 So. 2d 1151 (Fla.2000).
Further, the appellant’s claim, which is that the trial court erred in reclassifying his aggravated battery conviction from a second-degree felony to a first-degree felony based on his use of a weapon, because the use of a weapon was an essential element of this conviction, is facially sufficient. See § 775.087(1), Fla. Stat. (1995); see also Senterfitt v. State, 515 So. 2d 411 (Fla. 1st DCA 1987).
We accordingly reverse and remand this cause to the circuit court with directions to consider the appellant’s claim on the merits.
ERVIN, BENTON and POLSTON, JJ„ concur.
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Monfiston v. State, 54 So. 3d 632 (Fla. 4th DCA 2011)…court’s decision on direct appeal. As such, his motion was timely filed. See Ortiz v. State, 4 So. 3d 794 (Fla. 4th DCA 2009); Witt v. State, 861 So. 2d 1292 (Fla. 5th DCA 2004); Perkins v. State, 845 So. 2d 273 (Fla. 2d DCA 2003); Cargle v. State, 800 So. 2d 698 (Fla. 1st DCA 2001). Accordingly, we reverse and remand for the circuit court to entertain appellant’s motion for postconviction relief. Reversed and Remanded. STEVENSON, MAY and DAMOORGIAN, JJ., concur.…
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Rico L. Cargle v. State, 829 So. 2d 366 (Fla. 1st DCA 2002)…PER CURIAM. Appellant appeals the summary denial of his rule 3.850 motion for postconviction relief upon remand by this Court. See Cargle v. State, 800 So. 2d 698 (Fla. 1st DCA 2001). In his motion, Appellant alleged that the trial court erred in reclassifying his aggravated battery conviction from a second-degree felony to a first-degree felony based on his use of a weapon [*367] where use of the weapon was…
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Witt v. State, 861 So. 2d 1292 (Fla. 5th DCA 2004)…1 (Fla. 5th DCA 2002), we held that it was error to dismiss a 3.850 motion as untimely when it was filed within two years of a determination by the Supreme Court not to review a case in which it could exercise jurisdiction. See also Cargle v. State, 800 So. 2d 698 (Fla. 1st DCA 2001). Compare Beaty (when a direct appeal is affirmed per curiam without opinion, the Supreme Court lacks jurisdiction to review, and a rule 3.850 motion must, therefore, be filed within two years of the mandate of the district court…
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- Rico L. Cargle v. State, 770 So. 2d 1151 (Fla. 2000)
- Senterfitt v. State, 515 So. 2d 411 (Fla. 1st DCA 1987)
- Brown v. State, 617 So. 2d 1105 (Fla. 1st DCA 1993)