STEVE HAMPTON, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Steve Hampton appealed the trial court's summary denial of his Rule 3.850 postconviction relief motion, arguing he was entitled to withdraw the motion before it was ruled upon. The Fourth District Court of Appeal granted certiorari relief and quashed the trial court's orders, holding that a defendant may withdraw a Rule 3.850 motion before it is ruled on unless prejudice to the state results.
A Rule 3.850 movant is entitled to withdraw his motion before it is ruled upon unless there is prejudice to the state. The trial court departed from the essential requirements of law by refusing to allow Hampton to withdraw and refile his motion in its entirety. For purposes of determining when the motion was filed, the motion is considered filed on the date it was served (July 26) for an incarcerated defendant, which was prior to when the trial court's order became effective on July 28.
[1] A rule 3.850 movant is generally entitled to withdraw their motion before it is ruled upon, absent prejudice to the state.
[2] A motion served by an incarcerated party is considered filed on the date of service, even if not yet filed with the court.
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Join FLexlaw to unlock all legal intelligence“Unless there is prejudice to the state, a rule 3.850 movant is entitled to withdraw his motion before it is ruled on.”
Establishes the foundational rule that defendants may withdraw Rule 3.850 motions absent state prejudice
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Join FLexlaw to unlock all legal intelligenceHampton's conviction and sentence were affirmed on appeal in 2004, with the Florida Supreme Court denying review in March 2005. This gave him until Ma…
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PER CURIAM.
Steve Hampton (Defendant) appeals-an order summarily denying in part, and summarily denying without prejudice in part, his rule 3.850 motion for postconviction relief, and a second order denying his motion to dismiss his pending rule 3.850 motion as moot. We treat the appeal as a petition for writ of certiorari and grant it.
We affirmed Defendant’s conviction and sentence in L.T. case no. 02-4814 by written opinion, Hampton v. State, 886 So. 2d 319 (Fla. 4th DCA 2004), rev. denied, 898 So. 2d 937 (Fla.2005). The supreme court denied review on March 3, 2005. Thus, the time within which Defendant may file a timely rule 3.850 motion was not to expire until Monday, March 5, 2007. He filed such a motion on September 21, 2005 and thereafter amended it several times. One or more of the amendments did not comply with rule 3.850(c). In an order dated July 25 but not entered until July 28, 2006, the trial court summarily denied grounds one through four, and denied the remaining eight grounds without prejudice to Defendant refiling them in strict compliance with rule 3.850(c).
On July 26, 2006, before the trial court’s order was entered, Defendant served a motion to dismiss his then pending amended rule 3.850 motion. He noted that he was still within the two-year time period for filing a timely motion, and indicated he planned to resubmit his entire twelve-ground motion instead of the eight grounds that the trial court denied without prejudice. That motion was not filed with the court until August 1, 2006. In an order dated August 14 and entered August 15, 2006, the trial court denied Defendant’s motion to dismiss as moot. Defendant appealed both the July 28 and the August 15 orders.
The orders on appeal are nonfinal, non-appealable orders. However, we treat the appeal as a petition for writ of certiorari. See Jackson v. State, 527 So. 2d 845 (Fla. 1st DCA 1988) (granting certiorari relief from trial court s refusal to allow defendant to revoke his motion to withdraw plea).
Unless there is prejudice to the state, a rule 3.850 movant is entitled to withdraw his motion before it is ruled on. See Clark v. State, 491 So. 2d 545 (Fla. 1986); Washington v. State, 937 So. 2d 271 (Fla. 4th DCA 2006); Hutchinson v. State, 921 So. 2d 780 (Fla. 1st DCA 2006); Johnson v. State, 739 So. 2d 160 (Fla. 3d DCA 1999).
We conclude that the trial court departed from the essential requirements of law when it did not allow Defendant to withdraw his motion in its entirety and to refile it. Because he is incarcerated, Defendant’s motion is considered to have been filed on July 26, the date it was served. See Fla. R.App. P. 9.420(a)(2); Thompson v. State, 761 So. 2d 324 (Fla. 2000); Haag v. State, 591 So. 2d 614 (Fla. 1992). This was prior to the date that the trial court’s order of denial was rendered, on July 28, as an order does not become effective until it is signed and filed. Barry v. Robson, 65 So. 2d 739 (Fla.1953), cited in HenRY P. Trawiok, Jr., Florida Practice and Prooedure § 15-3 (2004 ed.).1 The fact that the trial court could not have known of the dismissal at the time of ruling does not control. Compare Hansen v. State, 816 So. 2d 808, 809 (Fla. 1st DCA 2002) (“Although the trial court may have ruled upon the postconviction motion before becoming aware that a motion to dismiss was pending, the trial court should have corrected its oversight when ruling upon Appellant’s timely motion for rehearing.”).
Accordingly, we quash the two orders on review and, as the time for filing expired while this appeal was pending, we direct the trial court to allow Defendant to refile his motion within thirty days after the issuance of the mandate in this case. If Defendant has already refiled his motion with the trial court while this proceeding has been pending, the court shall consider and rule on that motion.
GUNTHER, POLEN and TAYLOR, JJ., concur. . The rule does not apply when the parties are present to hear the order, Trawick § 15-3, but that was not the case here,
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Negron v. Hessing, 186 So. 3d 1139 (Fla. 4th DCA 2016)…a. Raceway, Inc., 316 So. 2d 311, 312 (Fla. 1st DCA 1975) (holding that appellants were not authorized to file a successive written motion for new trial after the trial court orally denied their ore tenus motion for same); see also Hampton v. State, 949 So. 2d 1197, 1199 n. 1 (Fla. 4th DCA 2007) (noting that the general rule that-an order does not become effective until it is signed and filed “does not apply when the parties are present to hear the order”). Accordingly, once the trial, judge orally ruled on Pl…
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Hardy v. State, 958 So. 2d 577 (Fla. 4th DCA 2007)…tion to Dismiss or Withdraw 3.850” prior to ruling on the merits of the motion for postconviction relief. We agree, and the State has properly conceded error. Pursuant to Washington v. State, 937 So. 2d 271 (Fla. 4th DCA 2006), and Hampton v. State, 949 So. 2d 1197 (Fla. 4th DCA 2007), the lower court should have allowed Hardy to withdraw his rule 3.850 motion prior to a ruling on the merits, thus preserving his right to re-file the motion at a later date within the two-year period of limitations. Fla. R.Crim.…
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Smith v. State, 31 So. 3d 264 (Fla. 4th DCA 2010)…ended that the trial court dismiss defendant’s pending motions without prejudice. Nevertheless, the trial court instead denied the rule 3.850 motion. Although the trial court should have allowed defendant to withdraw his petition, Hampton v. State, 949 So. 2d 1197, 1199 (Fla. 4th DCA 2007) (“Unless there is prejudice to the state, a rule 3.850 movant is entitled to withdraw his motion before it is ruled on.”), and the proper disposition on considering the petition should have been [*265] to dismiss it, see Jo…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- State v. Thurston McCLAIN, 591 So. 2d 614 (Fla. 1992)
- Haag v. State, 591 So. 2d 614 (Fla. 1992)
- Thompson v. State, 761 So. 2d 324 (Fla. 2000)
- Clark v. State, 491 So. 2d 545 (Fla. 1986)
- Mailloux v. State, 816 So. 2d 808 (Fla. 1st DCA 2002)
- Barry v. Robson, 65 So. 2d 739 (Fla. 1953)
- Hampton v. State, 898 So. 2d 937 (Fla. 2005)
- Washington v. State, 937 So. 2d 271 (Fla. 4th DCA 2006)
- Mosley v. State, 921 So. 2d 780 (Fla. 1st DCA 2006)
- Hutchinson v. State, 921 So. 2d 780 (Fla. 1st DCA 2006)