MIGUEL LOPEZ-MERCED, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Miguel Lopez-Merced appealed the trial court's summary denial of his post-conviction 3.850 motion as untimely. The appellate court reversed and remanded, holding that the trial court erred by not considering Lopez-Merced's argument that the two-year filing deadline was tolled due to his incarceration out-of-state and lack of access to Florida legal materials.
The trial court erred by summarily denying the 3.850 motion as untimely without first considering appellant's tolling argument. The court reversed the denial order and remanded for the trial court to reconsider the timeliness issue with consideration of the tolling claim.
[1] A notice of appeal filed before a ruling on a motion for rehearing divests the trial court of jurisdiction to rule on the motion for rehearing.
[2] A defendant's post-conviction motion should not be summarily denied as untimely without first considering arguments for tolling the statute of limitations.
Previewing 2 of 4 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“As the trial court should not have summarily denied the 3.850 motion as untimely without first considering appellant's tolling argument, the order denying relief is reversed and the case is remanded to the trial court so that it can reconsider the timeliness issue.”
States the holding that the trial court erred by not considering the tolling argument before denying the motion
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLopez-Merced filed a post-conviction motion under Florida Rule of Criminal Procedure 3.850, arguing the two-year limitation period should be tolled be…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Abandonment Of Motion cases and more on FLexlaw
PER CURIAM.
Miguel Lopez-Merced (“appellant”) appeals from the order denying his post- conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the 3.850 motion as untimely by order rendered on January 30, 2006, even though appellant argued in his memorandum of law that the two-year limitation period1 had been tolled because he was incarcerated out-of-state and lacked access to Florida legal materials. Appellant filed a motion for rehearing under the mailbox rule2 on February 10, 2006, but then filed a notice of appeal under the mailbox rule on February 24, 2006, before the lower court considered the motion for rehearing. The trial court later granted the motion for rehearing by order rendered on February 28, 2006, and ordered the State to respond to the 3.850 motion, specifically as to appellant’s claim that the standard two-year filing period was tolled.
The order granting the motion for rehearing was entered without jurisdiction as appellant abandoned his motion when he filed the notice of appeal. See In re: Forfeiture of $104,591 in U.S. Currency, 589 So. 2d 283 (Fla.1991). After the trial court granted the motion for rehearing, appellant voluntarily dismissed his appeal. He then belatedly realized that the order granting the motion for rehearing was a nullity, because he next filed a motion to reinstate the appeal, which this court granted.
As the trial court should not have summarily denied the 3.850 motion as untimely without first considering appellant’s tolling argument,3 the order denying relief is reversed and the case is remanded to the trial court so that it can reconsider the timeliness issue.4
REVERSED and REMANDED.
ORFINGER, MONACO and TORPY, JJ., concur. . See Fla. R.Crim. P. 3.850(b).
. See Haag v. State, 591 So. 2d 614 (Fla. 1992).
. See Demps v. State, 696 So. 2d 1296 (Fla. 3d DCA 1997).
.This court ordered the State to respond to the order denying appellant's 3.850 motion, but the State instead filed a motion to supplement the record. The record-on-appeal contains all of the necessary documents. We therefore deny the motion to supplement and withdraw our show cause order.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Howell M. Ramsey v. State, 965 So. 2d 854 (Fla. 2d DCA 2007)…at 1299; see also John v. State, 826 So. 2d 496 (Fla. 3d DCA 2002). Other district courts of appeal have followed the sound reasoning of the Demps case in holding that the time for filing a rule 3.850 motion can be tolled. See Lopez-Merced v. State, 949 So. 2d 362 (Fla. 5th DCA 2007); Kirk v. State, 707 So. 2d 948 (Fla. 1st DCA 1998). The rationale for permitting the congruence of certain limited, rarely occurring circumstances to toll the time for a prisoner to file a rule 3.850 motion derives from the fund…
-
Ezra Fowler, Jr. v. State, 61 So. 3d 483 (Fla. 5th DCA 2011)…te, 811 So. 2d 756, 756 (Fla. 1st DCA 2002). Likewise, after filing a notice of appeal from a final order in a postconviction proceeding, a defendant abandons any pending motions in the circuit court relating to that case. See Lopez-Merced v. State, 949 So. 2d 362, 363 (Fla. 5th DCA 2007); Moore v. State, 789 So. 2d 551, 552 (Fla. 5th DCA 2001). Because Fowler appealed the order denying relief rendered on September 8, 2010, the order entered on November 29, 2010, was a nullity. It is, therefore, vacated and t…
Authorities Cited
- State v. Thurston McCLAIN, 591 So. 2d 614 (Fla. 1992)
- Haag v. State, 591 So. 2d 614 (Fla. 1992)
- Demps v. State, 696 So. 2d 1296 (Fla. 3d DCA 1997)
- In re Forfeiture OF $104 v. Metro Dade Police Dep't, 589 So. 2d 283 (Fla. 1991)