JAMES O'NEILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James O'Neill appealed the summary denial of his Rule 3.850 motion for postconviction relief seeking to withdraw his guilty plea. The court reversed and remanded, holding that O'Neill's motion was untimely filed more than two years after his direct appeal concluded, and that a subsequent resentencing on an illegal sentence did not toll the two-year deadline.
The court held that O'Neill's Rule 3.850 motion was untimely. The two-year limitation period for filing a Rule 3.850 motion begins when direct review proceedings conclude, not when a subsequent resentencing on an illegal sentence occurs. A resentencing pursuant to a Rule 3.800(a) motion to correct illegal sentence does not toll the two-year deadline.
[1] A judgment and sentence are not final for the purpose of Florida Rule of Criminal Procedure 3.850 until direct review proceedings are concluded.
[2] The two-year limitation for filing a motion for postconviction relief is not tolled by other collateral proceedings, even if a corrected sentence is entered.
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Join FLexlaw to unlock all legal intelligence“no motion shall be filed more than two years after the judgment and sentence become final in a non-capital case”
States the statutory requirement under Florida Rule of Criminal Procedure 3.850(b) governing the filing deadline for postconviction motions
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Join FLexlaw to unlock all legal intelligenceO'Neill was convicted in 2001 and sentenced on nine offenses pursuant to a plea agreement. He appealed, and the appellate court reversed and remanded …
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James O’Neill appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the postcon-viction court’s order and remand with instructions to dismiss O’Neill’s motion as untimely.
In 2001, O’Neill was convicted of and sentenced on nine offenses pursuant to a negotiated plea agreement. He appealed, and this court reversed and remanded for the trial court to strike minimum mandatory terms from his sentences on counts seven and nine. O’Neill v. State, 841 So.2d 629 (Fla. 2d DCA 2003). The mandate in his direct appeal was issued on April 28, 2003. O’Neill did not file his rule 3.850 motion seeking to withdraw his plea until September 28, 2005, more than two years after his direct review proceedings were concluded. See Fla. R.Crim. P. 3.850(b) (providing that no motion shall be filed more than two years after the judgment and sentence become final in a non-capital case); Valdes v. State, 904 So.2d 515 (Fla. 3d DCA 2005) (holding that a judgment and sentence are not final for purposes of rule 3.850 until direct review proceedings are concluded).
O’Neill claimed that his rule 3.850 motion was timely because it was filed only thirty days after a resentencing on count six that occurred on August 29, 2005. However, that resentencing was not the result of his direct appeal proceedings but was the result of a successful motion to correct illegal sentence, which did not affect the timeliness of his rule 3.850 motion. See Joseph v. State, 835 So.2d 1221, 1222 n. 3 (Fla. 5th DCA 2003) (“The two-year limitation is not tolled by other collateral proceedings filed in the trial court, even if a corrected sentence is entered. An illegal sentence may be corrected at any time, and it would make no sense to allow a judgment to be attacked many years after the expiration of the two-year deadline simply because a sentence was corrected pursuant to a rule 3.800(a) motion.”); see also Pierce v. State, 875 So.2d 726, 727 n. 1 (Fla. 4th DCA 2004) (noting the difference between cases “involvefing] re-sentencing on direct appeal” and cases such as Joseph *631involving “re-sentencing following a post-conviction motion”).
Accordingly, we reverse the order on appeal. On remand, the postconviction court shall dismiss O’Neill’s motion without prejudice to any right he may have to file a belated motion for postconviction relief asserting relief under the exceptions listed in rule 3.850(b), about which we express no opinion. We note that if O’Neill refiles his motion and is successfully able to assert an exception to the two-year requirement, the postconvietion court should consider his claims in light of Spera v. State, 971 So.2d 754 (Fla.2007), of which the postconviction court did not have the benefit at the time it initially denied three of O’Neill’s claims as facially insufficient.
Reversed and remanded.
WHATLEY and SILBERMAN, JJ., Concur.
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Doby v. State, 25 So. 3d 598 (Fla. 2d DCA 2009)…e filed within two years of the date the judgment and sentence become final in noncapital cases like this one. Mr. Doby’s judgment and sentence became final on June 14, 2000, when this court issued mandate in his direct appeal. See O’Neill v. State, 6 So. 3d 630, 630 (Fla. 2d DCA 2009) (holding that a judgment and sentence becomes final when direct appeal proceedings are concluded). While rule 3.850(b)(1) recognizes an exception to this time limitation for newly discovered evidence, Mr. Doby does not cite n…
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Gillis v. State, 32 So. 3d 681 (Fla. 2d DCA 2010)…lis’s resen-tencing, which resulted not from his direct appeal but from his successful rule 3.800 motions, did not toll the two-year time limit for filing a rule 3.850 motion attacking his convictions. See Fla. R.Crim. P. 3.850(b); O’Neill v. State, 6 So. 3d 630, 630 (Fla. 2d DCA 2009); Marrero v. State, 967 So. 2d 934, 936 (Fla. 2d DCA 2007). Instead of considering Mr. Gillis’s claims on the merits, the postconviction court should have denied it as untimely. However, we affirm the denial because the postco…
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Miles v. State, 343 So. 3d 131 (Fla. 2d DCA 2022)…between sentencings augurs in his favor. Mr. Dunbar litigated the legality of his sentence through the direct appeal process. In contrast, Mr. Miles' judgment and sentence became final in August 2007. Miles, 962 So. 2d 910; see O'Neill v. State, 6 So. 3d 630, 630 (Fla. 2d DCA 2009) (holding that a judgment and sentence become final when direct appeal proceedings are concluded). Thereafter, he availed himself of the postconviction process. According to Mr. Miles, the passage of time creates a reasonabl…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Maille Joseph v. State, 835 So. 2d 1221 (Fla. 5th DCA 2003)
- Gunn v. State, 841 So. 2d 629 (Fla. 2d DCA 2003)
- O'Neill v. State, 841 So. 2d 629 (Fla. 2d DCA 2003)
- Vargas v. State, 875 So. 2d 726 (Fla. 2d DCA 2004)
- Valdes v. State, 904 So. 2d 515 (Fla. 3d DCA 2005)