TONY HAYES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court reversed the trial court's summary denial of a habeas petition seeking permission to file a belated post-conviction relief motion, finding the trial court misunderstood which sentence was at issue and failed to address whether the doctrine of laches barred the filing.
A trial court must conduct an evidentiary hearing on allegations that counsel failed to file a timely post-conviction relief motion as instructed, but the court must also address whether the doctrine of laches bars the belated filing.
[1] The doctrine of laches may bar a motion for post-conviction relief filed substantially after the adoption of the rule permitting such relief, even absent an express time…
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Join FLexlaw to unlock all legal intelligenceAppellant Hayes sought permission to file a belated motion for post-conviction relief relating to a 1995 sentence, claiming he instructed counsel to f…
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PER CURIAM.
Appellant challenges the lower court’s order that summarily denied his petition for writ of habeas corpus wherein he sought permission to file a belated motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850(b)(3). The trial court denied the petition based upon the mistaken belief that Appellant was seeking to challengé his original sentence imposed 15 .years earlier. In fact, the belated motion Appellant sought to file relates to the sentence imposed in 1995. Appellant claims that he timely instructed counsel to file the motion in 1996, that counsel assured him it had been filed, but that the motion was never filed. Ordinarily, these allegations would be sufficient to require the court to conduct an evidentiary hearing on the issue of whether counsel neglected to pursue the motion pursuant to Appellant’s instructions. In this case, however, Appellant’s delay in filing the rule 3.850(b)(3) motion might preclude review of the motion on its merits. Although rule 3.850(b)(3) contains no express time limit, the doctrine of laches might bar the filing of the motion some five and one-half years after the Florida Supreme Court adopted rule 3.850(b)(3). See Strong v. State, 851 So. 2d 758, 759-60 (Fla. 2d DCA), review denied, 860 So. 2d 978 (Fla.2003). The trial court never addressed this issue, however. The order is, therefore, reversed and this cause remanded to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED
SHARP, W., MONACO and TORPY, JJ., concur.
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Citator
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Downs v. State, 135 So. 3d 521 (Fla. 5th DCA 2014)…oceedings consistent with this opinion. Our reversal, however, is without prejudice to the State to raise the claim of laches. See McCray v. State, 699 So. 2d 1366 (Fla.1997); Brimage v. State, 937 So. 2d 230, 233 (Fla. 3d DCA 2006); Hayes v. State, 896 So. 2d 974 (Fla. 5th DCA 2005). REVERSED AND REMANDED. TORPY, C.J., SAWAYA and BERGER, JJ., concur. . Rule 3.850(b)(3), which went into effect on July 1, 2011, provides in pertinent part: Time Limitations. A motion to vacate a sentence that exceeds the lim…
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Taurus Lejuane Jerido v. State, 15 So. 3d 851 (Fla. 1st DCA 2009)…he suppression hearing indicates that it did not utilize the proper standard for resolving a motion to suppress. When ruling on a motion to suppress, it is the responsibility of the trial judge, not the jury, to resolve issues of fact. Ray v. State, 896 So. 2d 974, 975 (Fla. 2d DCA 2005); Vasta v. State, 662 So. 2d 1327, 1328 (Fla. 2d DCA 1995); Johnson v. State, 566 So. 2d 888, 890 (Fla. 4th DCA 1990); Parlee v. State, 899 So. 2d 458, 460 (Fla. 5th DCA 2005). The trial court in the instant case reversibly er…
Authorities Cited
- Strong v. State, 851 So. 2d 758 (Fla. 2d DCA 2003)