DUANE ARMSTRONG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Duane Armstrong appealed the dismissal of his refiled motion for postconviction relief under Florida Rule 3.850. The Fourth District Court of Appeal reversed, holding that when a trial court dismisses a postconviction motion without specifying a deadline for refiling, the defendant may refile without being subject to the two-year rule, and the refiled motion must be considered on the merits.
A refiled postconviction motion is not untimely when the original dismissal order fails to specify a timeframe for refiling. The trial court erred in dismissing the refiled motion as untimely and must consider it on the merits.
[1] A trial court errs in dismissing a refiled motion for postconviction relief as untimely when the original dismissal order did not specify a deadline for refiling.
[2] A trial court's order dismissing a motion for postconviction relief without prejudice for lack of a proper oath, and without specifying a refiling deadline, allows for th…
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Join FLexlaw to unlock all legal intelligence“Because the trial court's order placed no limitation on when the defendant could refile his postconviction motion, the trial court erred by dismissing the motion.”
Establishes the core holding that failure to specify a refiling deadline prevents dismissal as untimely.
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Join FLexlaw to unlock all legal intelligenceArmstrong was convicted of possession of cocaine with intent to sell or deliver, battery on a law enforcement officer, and resisting without violence.…
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WARNER, J.
Appellant Duane Armstrong timely appeals the order dismissing as untimely his refiled rule 3.850 motion for postconviction relief. Because the order dismissing his original motion did not specify a deadline for refiling, we reverse.
Armstrong was convicted and sentenced for possession of cocaine with intent to sell or deliver, battery on a law enforcement officer, and resisting without violence. The judgment became final when this court issued its mandate affirming his conviction on July 16, 2004. On or about June 27, 2005 Armstrong filed a timely 3.850 motion for postconviction relief, which the trial court dismissed without prejudice on February 9, 2006 because it was unsworn. The order did not specify a deadline within which to refile.
Armstrong then filed a petition for belated appeal, which this court granted. However, after the order appealed from became a part of the record on appeal, we dismissed the appeal in January of 2008, as the order was non-final and non-appeal-able.
On February 1, 2008, Armstrong refiled his motion for postconviction' relief. In response to the motion, the state asserted that the trial court was without jurisdiction, because the motion was filed well beyond two years after the mandate issued in the direct appeal. The trial court agreed with the state and dismissed the motion. Armstrong then filed the instant appeal.
The Second District considered a similar situation in Jumper v. State, 903 So. 2d 264 (Fla. 2d DCA 2005). There, the trial court dismissed without prejudice the defendant’s motion for postconviction relief for lack of a proper oath. The court then summarily denied his refiled motion as untimely. The Second District held that because the trial court’s order placed no limitation on when the defendant could refile his postconviction motion, the trial court erred by dismissing the motion. However, the trial court correctly dismissed as untimely supplemental motions that asserted new claims and did not expand upon the issues already raised.
As in Jumper, the trial court’s order of dismissal did not provide a timeframe within which to refile the motion. The refiled motion merely expanded on arguments raised in the original motion and did not raise new arguments. Therefore, the trial court erred in dismissing the motion as untimely. See also Woods v. State, 963 So. 2d 348, 349 (Fla. 4th DCA 2007) (“Facially insufficient motions should be denied without prejudice to refile a sufficient amended motion within an appropriate time period set forth in the order before dismissal or summary denial can be entertained.”); Brigham v. State, 950 So. 2d 1274 (Fla. 2d DCA 2007) (amended motion for postconviction relief was not untimely where original order dismissing the motion granted leave to amend but did not specify a deadline).
Accordingly, we reverse the trial court’s order dismissing the refiled motion for postconviction relief and remand for the trial court to consider the motion on the merits.
Reversed and remanded.
MAY and DAMOORGIAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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RICO v. State, 71 So. 3d 245 (Fla. 4th DCA 2011)…back to the previous motion that was timely filed within the two-year time limit in rule 3.850(b). The trial court’s order is reversed and this case remanded for the court to consider the October 8, 2007 motion on the merits. See Armstrong v. State, 989 So. 2d 1291 (Fla. 4th DCA 2008); Woods v. State, 963 So. 2d 348, 349 (Fla. 4th DCA 2007); Jumper v. State, 903 So. 2d 264 (Fla. 2d DCA 2005); Mendes v. State, 770 So. 2d 202 (Fla. 4th DCA 2000). MAY, C.J., POLEN and LEVINE, JJ., concur.…
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Hayes v. State, 59 So. 3d 384 (Fla. 4th DCA 2011)…se the trial court had earlier entered an order dismissing his original motion without prejudice to refile an amended motion on certain of the twenty-nine grounds raised, and that order contained no time limit for compliance. See Armstrong v. State, 989 So. 2d 1291 (Fla. 4th DCA 2008); Woods v. State, 963 So. 2d 348 (Fla. 4th DCA 2007). The only issue remaining is whether the trial court must entertain Hayes’s original motion as well as his amended motion, which did include all twenty-nine grounds as origina…
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Ford v. State, 257 So. 3d 620 (Fla. 1st DCA 2018)…July of 2015, and (b) the date that the appeal on the rule 3.800 motion concluded, which was February 2, 2016. It is well-established that a court cannot enforce a filing deadline which must be inferred by a party. See Armstrong v. State, 989 So. 2d 1291, 1292 (Fla. 4th DCA 2008) (“‘Facially insufficient motions should be denied without prejudice to refile a sufficient amended motion within an appropriate time period set forth in the order before dismissal or summary denial can be entertained.’”…
Authorities Cited
- Brigham v. State, 950 So. 2d 1274 (Fla. 2d DCA 2007)
- Rasheed Randolph v. State, 903 So. 2d 264 (Fla. 2d DCA 2005)
- Philmon Mowatt v. State, 963 So. 2d 348 (Fla. 4th DCA 2007)
- Woods v. State, 963 So. 2d 348 (Fla. 4th DCA 2007)