ALBERTO RIVAS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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SHEPHERD, J.
Defendant appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion, which the trial court denied as successive. We reverse.
A review of the motions previously filed by defendant demonstrates that the June 4, 2004 Rule 3.850 motion under consideration was timely and not successive.1 Defendant filed several Rule 3.800 motions attacking his sentence, and filed a motion entitled “Motion for Post Conviction Re-liefTixtension of Time” in which he merely requested an extension of time to file a Rule 3.850 motion. The trial court denied this motion as successive. In the June 4 motion, entitled “Motion for Rehearing and Clarification Pursuant to Rule 3.850(g),” defendant raised several ineffective assistance of trial counsel claims. Because the previous motions either sought relief pursuant to Rule 3.800 or an extension of time to file a Rule 3.850 motion, the court erred in denying the June 4 motion as successive. See Ramirez v. State, 822 So. 2d 593, 594 (Fla. 2d DCA 2002). Accordingly, we reverse and remand for consideration of the June 4 motion.
Reversed and remanded.
. The state concedes that the June 4 motion was filed timely.
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Jon W.F. Kuiken v. State, 127 So. 3d 629 (Fla. 3d DCA 2013)…ause neither a claim of juror misconduct nor a claim of ineffective assistance of counsel is cognizable under Rule 3.800(a) or Rule 3.800(c), the trial court erred in finding that Kuiken’s Rule 3.850 motion [*631] was successive. See Rivas v. State, 906 So. 2d 1193 (Fla. 8d DCA 2005) (finding that Rule 3.850 motion was not successive as previous motions either sought relief pursuant to Rule 3.800 or sought an extension of time to file a Rule 3.850 motion); Ramirez v. State, 822 So. 2d 593, 594 (Fla. 2d DCA 200…
Authorities Cited
- Ramirez v. State, 822 So. 2d 593 (Fla. 2d DCA 2002)