JOSE PEREZ ORTIZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the rule 3.850 motion was timely filed because the time for filing was tolled until direct review proceedings concluded.
Jose Ortiz appealed an order denying his rule 3.850 motion as untimely. The motion was filed after direct appeal and discretionary review proceedings …
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Jose Ortiz appeals an order denying his rule 3.850 motion as untimely filed. We agree that the motion was timely filed and reverse and remand for the trial court to consider the motion on the merits.
On direct appeal, this court issued an opinion affirming appellant’s convictions. Ortiz v. State, 869 So.2d 1278 (Fla. 4th DCA 2004). Thereafter, appellant timely sought discretionary review in the Florida Supreme Court. The supreme court stayed the proceedings pending review of a certified question in McLean v. State, 854 So.2d 796 (Fla. 2d DCA 2003). After deciding McLean v. State, 934 So.2d 1248 (Fla.2006), on October 3, 2006, the supreme court denied review in appellant’s case. Ortiz v. State, 941 So.2d 368 (Fla. *7952006). Appellant filed his rule 3.850 motion on February 5, 2007.
Ortiz is correct that the time for filing this rule 3.850 motion was tolled until the direct review proceedings were concluded. See Mullins v. State, 974 So.2d 1135 (Fla. 3d DCA 2008); Perkins v. State, 845 So.2d 273, 274 (Fla. 2d DCA 2003); Gallo v. State, 571 So.2d 78 (Fla. 4th DCA 1990). On appeal, the state does not dispute that the motion was timely filed.
Accordingly, we reverse the circuit court’s order and remand this ease for the court to consider the 3.850 motion on the merits.
GROSS, C.J., MAY and DAMOORGIAN, JJ., concur.
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Monfiston v. State, 54 So. 3d 632 (Fla. 4th DCA 2011)…nal Procedure 3.850. Appellant’s motion was filed within two years of the date that the Supreme Court of Florida disposed of his petition for review of this court’s decision on direct appeal. As such, his motion was timely filed. See Ortiz v. State, 4 So. 3d 794 (Fla. 4th DCA 2009); Witt v. State, 861 So. 2d 1292 (Fla. 5th DCA 2004); Perkins v. State, 845 So. 2d 273 (Fla. 2d DCA 2003); Cargle v. State, 800 So. 2d 698 (Fla. 1st DCA 2001). Accordingly, we reverse and remand for the circuit court to entertai…
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Authorities Cited
- McLEAN v. State, 934 So. 2d 1248 (Fla. 2006)
- McLEAN v. State, 854 So. 2d 796 (Fla. 2d DCA 2003)
- Perkins v. State, 845 So. 2d 273 (Fla. 2d DCA 2003)
- Mullins v. State, 974 So. 2d 1135 (Fla. 3d DCA 2008)
- Gallo v. State, 571 So. 2d 78 (Fla. 4th DCA 1990)
- State v. Torres, 869 So. 2d 1278 (Fla. 4th DCA 2004)
- Ortiz v. State, 869 So. 2d 1278 (Fla. 4th DCA 2004)