MELVIN PEREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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An untimely post-conviction relief motion, based on counsel's alleged failure to file, must be raised via a petition for writ of habeas corpus, not a rule 3.850 motion.
Perez filed a motion for post-conviction relief which was untimely. He claimed his attorney failed to file a timely motion on his behalf.…
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Perez appeals from the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, seeking post-conviction relief. The motion is untimely because it was filed more than two years after Perez’s conviction and sentence for second degree murder with a firearm (the criminal case he seeks to attack in this motion) became final.1 In his motion, Perez failed to allege any basis for an exception to the two year time bar. We affirm.
However, Perez asserts on appeal that his untimely motion should be considered timely because he requested his trial counsel to file a timely post-conviction motion, but counsel failed to do so. In Steele v. Kehoe, 747 So. 2d 931 (Fla.1999), the Florida Supreme Court held that when a prisoner claims his attorney agreed to file a post-conviction motion but failed to do so in a timely manner, the matter should be presented to the trial court in a petition for writ of habeas corpus and that due process entitles the prisoner to a hearing to determine the validity of the claim. See also Salser v. State, 792 So. 2d 693 (Fla. 5th DCA 2001); Fla. R.Crim. P. 3.850(b)(3). Thus, our affir-mance is without prejudice for Perez to petition the trial court for a writ of habeas corpus, permitting him to file a belated rule 3.850 motion, as provided by Steele.
AFFIRMED.
GRIFFIN and THOMPSON, JJ., concur. . See Perez v. State, 770 So. 2d 694 (Fla. 5th DCA 2000) (mandate issued October 6, 2000).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Williams v. State, 6 So. 3d 97 (Fla. 1st DCA 2009)…for postconviction relief is reversed. The case is remanded for a hearing to determine the validity of the appellant’s claim that counsel failed to file a timely postconviction motion. See Steele v. Kehoe, 747 So. 2d 931 (Fla.1999); Perez v. State, 864 So. 2d 1245, 1246 (Fla. 5th DCA 2004). REVERSED. HAWKES, C.J., VAN NORTWICK and BROWNING, JJ., concur.…
Authorities Cited
- Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999)
- Salser v. State, 792 So. 2d 693 (Fla. 5th DCA 2001)