VINCENT RYDELL JOHNSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the defendant may have a basis to refile his postconviction motion if counsel's neglect caused the untimely filing and he has a good faith basis to avoid the bar of successiveness.
Defendant's counsel filed a motion for postconviction relief two days late. The trial court denied the motion as untimely and successive.…
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Affirmed.
(concurring).
Defendant-appellant Johnson appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. This particular motion was filed by counsel but was filed two days late.1 The trial court denied the motion as untimely and successive.
Defendant-appellant Johnson may have a basis to refile the motion under Florida Rule of Criminal Procedure 3.850(b)(3) which excuses the time bar where “the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion.” As the motion was untimely filed, this portion of the rule may excuse the time bar. See De La Rosa v. State, 979 So.2d 1089, 1089-90 (Fla. 3d DCA 2008). However, to refile the motion the defendant must also have a good faith basis to avoid the bar of successiveness. See Fla. R.Crim. P. 3.850(f).
COPE, J.
(concurring).
Defendant-appellant Johnson appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. This particular motion was filed by counsel but was filed two days late.1 The trial court denied the motion as untimely and successive.
Defendant-appellant Johnson may have a basis to refile the motion under Florida Rule of Criminal Procedure 3.850(b)(3) which excuses the time bar where “the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion.” As the motion was untimely filed, this portion of the rule may excuse the time bar. See De La Rosa v. State, 979 So. 2d 1089, 1089-90 (Fla. 3d DCA 2008). However, to refile the motion the defendant must also have a good faith basis to avoid the bar of successiveness. See Fla. R.Crim. P. 3.850(f).
. The mandate issued in the defendant's direct appeal on October 17, 2005, so the deadline for filing the rule 3.850 motion was October 17, 2007.
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Citator
Cited By
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Davis v. State, 56 So. 3d 860 (Fla. 1st DCA 2011)…plies to the instant case, Appellant may seek a waiver of the two-year time limitation before the lower court so that the court may consider the merits of Appellant’s claims. See Tinsley v. State, 41 So. 3d 334 (Fla. 1st DCA 2010); Johnson v. State, 7 So. 3d 643 (Fla. 3d DCA 2009). AFFIRMED. BENTON, C.J., DAVIS and THOMAS, JJ., concur.…
Authorities Cited
- DE LA Rosa v. State, 979 So. 2d 1089 (Fla. 3d DCA 2008)