HERIBERTO GALINDEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a motion for ineffective assistance of counsel based on gain time forfeiture is timely if filed within two years of the Department of Corrections informing the prisoner of the forfeiture.
Heriberto Galindez sought review of an order denying his motion for ineffective assistance of counsel as untimely. The motion alleged counsel failed t…
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PER CURIAM.
Heriberto Galindez seeks review of an order denying as untimely his motion under Florida Rule of Criminal Procedure 3.850. In the motion, Galindez claims he received ineffective assistance of counsel with respect to a plea resulting in a judgment dated November 16, 2001. The circuit court ruled that the motion was un timely because it was not filed within two years from December 15, 2001, the date the judgment became final. We reverse.
In the motion, Galindez alleges that his counsel failed to inform him that despite inclusion in the judgment of a provision concerning gain time, the Department of Corrections (DOC) could forfeit gain time based on his violation of probation. See § 944.28, Fla. Stat. (2004). Galindez attached to his motion his request to DOC for a computation of his sentence including gain time and the DOC’s response, which was dated April 23, 2002. The order of the circuit court denying Galindez’s rule 3.850 motion states that the motion was filed on April 5, 2004.
Under virtually identical circumstances, this court has twice held that the triggering event for the two-year period in which to file a rule 3.850 motion is not the date of the judgment in the criminal proceeding in which the prisoner pleaded, but the date on which the DOC informed the prisoner of the gain time forfeiture and that the DOC determination of gain time constituted newly discovered information within the meaning of rule 3.850(b)(1). Hall v. State, 891 So. 2d 1066 (Fla. 2d DCA 2004); Spradley v. State, 868 So. 2d 632 (Fla. 2d DCA 2004). Galindez’s motion was filed on April 5, 2004, within two years of April 23, 2002, the undisputed date that DOC informed him of his gain time forfeiture. The motion is timely.
Accordingly, we reverse the order of the circuit court and remand the matter for consideration of Galindez’s motion.
Reversed and remanded.
FULMER, C.J., and KELLY and VILLANTI, JJ„ Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Singleton v. State, 981 So. 2d 1259 (Fla. 2d DCA 2008)…in time were timely even though filed more than two years after the finality of judgment and sentence. See Boykins v. State, 976 So. 2d 700, 700-01 (Fla. 2d DCA 2008); Beasley v. State, 958 So. 2d 1086, 1087-88 (Fla. 2d DCA 2007); Galindez v. State, 909 So. 2d 597, 598 (Fla. 2d DCA 2005); Hall v. State, 891 So. 2d 1066, 1067 (Fla. 2d DCA 2004); Spradley v. State, 868 So. 2d 632, 633 (Fla. 2d DCA 2004); see also Douglas v. State, 977 So. 2d 776, 777-78 (Fla. 2d DCA 2008). We have concluded that such gain time…
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Stephon Boykins v. State, 976 So. 2d 700 (Fla. 2d DCA 2008)…but the date on which the DOC informed the prisoner of the gain time forfeiture and that the DOC determination of gain time constituted newly discovered information within the meaning of rule 3.850(b)(1). Id. at 1087-88 (quoting Galindez v. State, 909 So. 2d 597, 598 (Fla. 2d DCA 2005)); see also Hall v. State, 891 So. 2d 1066 (Fla. 2d DCA 2004); Spradley v. State, 868 So. 2d 632 (Fla. 2d DCA 2004). Because Boykins claimed that he did not learn that the DOC had forfeited his gain time until he was returned…
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Chandler v. State, 1 So. 3d 284 (Fla. 2d DCA 2009)…learning of the actual misadvice. See, e.g., Douglas v. State, 977 So. 2d 776, 777-78 (Fla. 2d DCA 2008); Boykins v. State, 976 So. 2d 700, 700-01 (Fla. 2d DCA 2008); Beasley v. State, 958 So. 2d 1086, 1087-88 (Fla. 2d DCA 2007); Galindez v. State, 909 So. 2d 597, 598 (Fla. 2d DCA 2005); Hall v. State, 891 So. 2d 1066, 1067 (Fla. 2d DCA 2004); Spradley v. State, 868 So. 2d 632, 633 (Fla. 2d DCA 2004). However, in Singleton v. State, 981 So. 2d 1259, 1261 (Fla. 2d DCA 2008), this [*287] court held that the c…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Spradley v. State, 868 So. 2d 632 (Fla. 2d DCA 2004)
- Hall v. State, 891 So. 2d 1066 (Fla. 2d DCA 2004)