OMAR S. WITT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Witt appeals the summary denial of his rule 3.850 post-conviction motion based on alleged untimeliness. The court holds that the motion was timely filed because the judgment did not become final until the Florida Supreme Court denied discretionary review, not when the district court issued its mandate.
The motion was timely. A judgment and sentence do not become final until the Supreme Court concludes proceedings when a movant seeks further review before that body, even if such review is discretionary. Therefore, Witt's rule 3.850 motion filed within two years of the Supreme Court's October 23, 2001 denial of review was timely, and he is entitled to substantive consideration of his motion.
[1] A rule 3.850 motion becomes final for purposes of the two-year limitations period when proceedings are concluded in the Supreme Court, if the Supreme Court has jurisdicti…
[2] A rule 3.850 motion is timely if filed within two years of the Supreme Court's denial of review in a case over which it had jurisdiction.
Previewing 2 of 5 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“If, however, the Supreme Court has jurisdiction to review the decision of the district court of appeal, and if the movant seeks further review before that body, then finality is not reached until proceedings are concluded in the Supreme Court.”
Establishes the key legal principle that determines when a judgment becomes final for purposes of the rule 3.850 filing deadline.
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Join FLexlaw to unlock all legal intelligenceWitt was convicted of multiple felonies and appealed. The Fifth District Court of Appeal affirmed his conviction with a mandate issued April 21, 2001.…
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[*1293] MONACO, J.
The appellant, Omar Sharif Witt, appeals the summary denial of his rule 3.850 motion based on the trial court’s determination that the motion was not timely filed. We conclude, however, that the motion was timely, and that Mr. Witt is entitled to a substantive consideration of his motion.
When Mr. Witt appealed his conviction of a number of felony offenses, this court issued a written opinion affirming the judgment and sentence. See Witt v. State, 780 So. 2d 946 (Fla. 5th DCA), review denied, 799 So. 2d 220 (Fla.2001). The trial court observed that the mandate that issued from this court was dated April 21, 2001, and that Mr. Witt did not file his rule 3.850 motion until July 21, 2003. The lower court, noting that more than two years had passed, denied the motion for failure to file within the limitation period articulated in rule 3.850(b). It appears, however, that Mr. Witt timely sought review of our decision in the Supreme Court, and that review was not denied by the high court until October 23, 2001. Nevertheless, the trial court declined to consider Mr. Witt’s motion on the merits.
Motions pursuant to rule 3.850 must be filed within two years “after the judgment and sentence become final in a noncapital case.” Fla.R.Crim.P. 3.850(b). If the movant appeals the judgment and sentence, they become final upon issuance of a mandate by a district court of appeal. See Beaty v. State, 701 So. 2d 856 (Fla.1997). If, however, the Supreme Court has jurisdiction to review the decision of the district court of appeal, and if the movant seeks further review before that body, then finality is not reached until proceedings are concluded in the Supreme Court. See Perkins v. State, 845 So. 2d 273 (Fla. 2d DCA 2003); cf., Huff v. State, 569 So. 2d 1247 (Fla.1990).
Accordingly, in Jenkins v. State, 821 So. 2d 1271 (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 of appeal). It appears, therefore, that Mr. Witt’s 3.850 motion was timely, and that he is entitled to a substantive review of the motion. The State agrees.
We, therefore, reverse the dismissal and remand for consideration of the motion on the merits.
REVERSED and REMANDED.
ORFINGER and TORPY, JJ., concur.
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Monfiston v. State, 54 So. 3d 632 (Fla. 4th DCA 2011)…within two years of the date that the Supreme Court of Florida disposed of his petition for review of this 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.…
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Merrill v. State, 909 So. 2d 519 (Fla. 5th DCA 2005)…; Hall v. State, 697 So. 2d 237 (Fla. 5th DCA 1997) (same). Accordingly, we VACATE the order and REMAND to the trial court for further consideration because the mandate in Merrill’s direct appeal has disposed of his plenary appeal. Smith v. State, 861 So. 2d 1292 (Fla. 5th DCA 2004). PLEUS, C.J. and PETERSON, J., concur. . Merrill appealed his conviction and sentence for carjacking in Fifth. District Court of Appeal case number 5D04-2899 on 26 August 2004. This court per curiam affirmed in Merrill v. St…
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Maxwell v. State, 888 So. 2d 152 (Fla. 5th DCA 2004)…post-conviction motion on March 9, 2004. As the district court of appeal issued a written opinion in the defendant’s case, his judgment and sentence did not become final until the proceedings in the supreme court were concluded. In Witt v. State, 861 So. 2d 1292 (Fla. 5th DCA 2004), we held that if the supreme court has jurisdiction to review a district court decision, the two-year period under Rule 3.850 does not begin to run until the proceedings in the supreme court have concluded. See also Perkins v. St…
Authorities Cited
- Huff v. State, 569 So. 2d 1247 (Fla. 1990)
- Beaty v. State, 701 So. 2d 856 (Fla. 1997)
- Perkins v. State, 845 So. 2d 273 (Fla. 2d DCA 2003)
- Witt v. State, 780 So. 2d 946 (Fla. 5th DCA 2001)
- Walker v. State, 800 So. 2d 698 (Fla. 5th DCA 2001)
- Rico L. Cargle v. State, 800 So. 2d 698 (Fla. 1st DCA 2001)
- Lennard Jenkins v. State, 821 So. 2d 1271 (Fla. 5th DCA 2002)