JAMES MCFADDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEES
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James McFadden appeals the denial of his motion for post-conviction relief challenging his 1996 guilty plea to robbery with a deadly weapon. The court affirmed the denial because McFadden's motion was filed more than two years after his sentence became final, making it untimely under Florida Criminal Procedure Rule 3.850(b).
McFadden's post-conviction motion was untimely because it was filed more than two years after his sentence became final in 1996. Probation constitutes a 'sentence' within the meaning of Rule 3.850(b), so the two-year period began running in 1996, and McFadden's 2003 filing was therefore untimely.
[1] A motion for post-conviction relief is untimely if filed more than two years after the judgment and sentence became final.
[2] Probation is considered a "sentence" for the purpose of calculating the timeliness of a post-conviction relief motion.
Previewing 2 of 3 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“Probation is a "sentence" within the meaning of the rule.”
Establishes that probation qualifies as a sentence for purposes of calculating the two-year deadline under Rule 3.850(b)
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Join FLexlaw to unlock all legal intelligenceMcFadden pleaded guilty to robbery with a deadly weapon on November 12, 1996, and was designated a habitual felony offender and placed on two years pr…
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GROSS, J.
James McFadden appeals an order denying his motion for post-conviction relief. We affirm, because the motion .was untimely.
On November 12, 1996, appellant pled guilty to robbery with a deadly weapon. The trial court designated him a habitual felony offender and placed him on two years probation.
In 1997, appellant -violated his probation and was sentenced to thirty years in prison. While this court reversed appellant’s status as a habitual felony offender, see McFadden v. State, 773 So. 2d 1237 (Fla. 4th DCA 2000), the supreme court subsequently disapproved of and then vacated this court’s decision. See Terry v. State, 808 So. 2d 1249 (Fla.2002); State v. McFadden, 819 So. 2d 139 (Fla.2002). This court issued a new opinion affirming appellant’s status as a habitual felony offender. See McFadden v. State, 832 So. 2d 872 (Fla. 4th DCA 2002).
On September 15, 2003, appellant moved for post-conviction relief attacking his 1996 plea as being involuntary because of the misadvice of his. lawyer. The post-conviction motion was untimely because it was filed “more than 2 years after the judgment and sentence became final” in the 1996 case. Fla. R.Crim. P. 3.850(b). Probation is a “sentence” within the meaning of the rule. See Lyell v. State, 872 So. 2d 447 (Fla. 2d DCA 2004); Fla. R.Crim. P. 3.710(a) (providing that “[n]o sentence or sentences other than probation shall be imposed.... ”). Construing the predecessor to the current version of rule 3.850, the supreme court held that probation “in and of itself’ constituted “custody under sentence” within the meaning of that rule. State v. Bolyea, 520 So. 2d 562 (Fla.1988). After examining the history of rule 3.850, the court concluded that a probationer was entitled to seek relief under the rule. Id. at 562-63. We see nothing in the recent amendment to the rule that changes the policy of the supreme court to preclude a probationer from seeking relief under rule 3.850. Thus, the time period for appellant to seek post-conviction relief directed at his 1996 plea began to run in 1996. Appellant’s 2003 motion was untimely.
Affirmed.
POLEN and KLEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Bolyea, 520 So. 2d 562 (Fla. 1988)
- Terry v. State, 808 So. 2d 1249 (Fla. 2002)
- McFADDEN v. State, 773 So. 2d 1237 (Fla. 4th DCA 2000)
- Lyell v. State, 872 So. 2d 447 (Fla. 2d DCA 2004)
- McFADDEN v. State, 832 So. 2d 872 (Fla. 4th DCA 2002)