MARK MONTALVO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District reversed the trial court's summary denial of a postconviction motion seeking leave to file a belated rule 3.850 motion, holding that the motion contained legally sufficient allegations of ineffective assistance of postconviction counsel and should have been treated as a habeas corpus petition.
A motion alleging ineffective assistance of postconviction counsel that sets forth legally sufficient allegations must be treated as a petition for writ of habeas corpus and cannot be summarily denied as facially insufficient.
[1] Ineffective assistance of postconviction counsel may be raised through a habeas corpus petition when a motion alleging such assistance contains legally sufficient allegat…
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Join FLexlaw to unlock all legal intelligenceMontalvo retained counsel to file a timely rule 3.850 motion, but counsel failed to file it with the proper file number within the deadline; a correct…
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PER CURIAM.
Mark Montalvo (Defendant) appeals an order summarily denying his motion for postconviction relief, filed pursuant to rule 3.850(b)(3), Florida Rules of Criminal Procedure, in which he sought leave to file a belated rule 3.850 motion. He set forth legally sufficient allegations that he retained counsel to file a timely rule 3.850 motion, but counsel failed to file a motion with the proper file number within the time allowed and the corrected motion filed a day later was denied as time-barred. The trial court’s denial was based on a state response which asserted that ineffective assistance of postconviction counsel is not a cognizable ground for relief and that, because Defendant did not label his motion as a petition for writ of habeas corpus, see Steele v. Kehoe, 747 So. 2d 931, 934 (Fla.1999), relief must be denied.
In response to this court’s order to show cause, the state acknowledges that the motion should have been treated as a petition for writ of habeas corpus, compare Mills v. State, 901 So. 2d 939 (Fla. 4th DCA 2005) (reversing trial court’s order summarily denying “rule 3.850(h)” motion filed pursuant to Steele v. Kehoe, which trial court should have treated as petition for writ of habeas corpus), but asserts that the motion was properly denied because it was facially insufficient. We do not agree that the motion was facially insufficient. Accordingly, we reverse the summary denial and direct the trial court on remand to treat the motion as a petition for writ of habeas corpus pursuant to Steele and Mills.
Reversed and Remanded for Further Proceedings.
POLEN, KLEIN and SHAHOOD, JJ., concur.
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Citator
Cited By
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Denard v. State, 152 So. 3d 1257 (Fla. 5th DCA 2014)…A 2011) (reversing and remanding the summary denial of defendant’s rule 3.850 motion for postconviction relief because defendant presented facts . sufficient to raise a valid ground for timeliness under rule 3.850(b)(3)); see also Montalvo v. State, 957 So. 2d 1273 (Fla. 4th DCA 2007) (holding that although defendant did not label his motion for postconviction relief a petition for writ of habeas corpus, the motion, which alleged that counsel was ineffective for failing to timely file the motion, was facially…
Authorities Cited
- Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999)
- Mills v. State, 901 So. 2d 939 (Fla. 4th DCA 2005)