KEVIN D. HARVEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Kevin Harvey, convicted in Florida in 1989 but immediately turned over to federal authorities, sought relief from the time bar for filing a post-conviction Rule 3.850 petition after his release from federal prison and return to Florida in 2008. The appellate court reversed the trial court's summary denial and remanded, holding that Harvey's out-of-state federal incarceration without counsel or access to Florida legal materials may have tolled the filing deadline.
The appellate court held that the trial court erred in summarily denying Harvey's motion without considering whether the time was tolled due to his out-of-state federal incarceration. The court remanded for the trial court to determine whether tolling applies and, if so, to treat any petition filed within two years of Harvey's return to Florida as timely.
[1] A petition for mandamus directing a lower court to reset the time for filing a Florida Rule of Criminal Procedure 3.850 petition may be treated as a notice of appeal.
[2] A prisoner held in an out-of-state jurisdiction without counsel and without access to relevant legal materials may have been deprived of meaningful access to Florida cour…
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Join FLexlaw to unlock all legal intelligence“The trial court should have considered that an un-counseled prisoner held in an out-of-state jurisdiction who is not represented by counsel and who does not have access to Florida legal materials has been deprived of meaningful access to Florida courts.”
Establishes the key principle that tolling may apply when a prisoner lacks counsel and access to legal materials while incarcerated out-of-state
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Join FLexlaw to unlock all legal intelligenceHarvey was convicted in Florida in 1989 and immediately transferred to federal custody to serve a twenty-year federal sentence in Alabama. He was rele…
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Kevin D. Harvey seeks an order granting a petition for mandamus directing the lower court to ‘reset’ the time for filing a Florida Rule of Criminal Procedure 3.850 petition. We treat his petition as a notice of appeal, and reverse and remand.
Harvey was convicted in Florida in 1989, but was immediately turned over to federal authorities to begin serving a twenty-year federal sentence. Harvey was incarcerated in federal prison in Alabama until he was released in 2007.1 In 2008, Harvey was returned to Florida to begin serving his 1989 state sentence. He filed a motion with the trial court to ‘reset’ the time for filing a rule 3.850 petition, asserting that *458he had been out of the jurisdiction and had no access to Florida materials in order to adequately prepare a post-conviction petition. The trial court summarily denied the motion.
We treat this petition as an appeal from the trial court’s summary denial of Harvey’s motion to reset the time for filing a rule 3.850 petition. See, e.g., Duque v. State, 983 So.2d 35 (Fla. 3d DCA 2008) (treating petition for mandamus as a notice of appeal); accord Reddick v. Lando, 673 So.2d 92 (Fla. 3d DCA 1996). The trial court should have considered that an un-counseled prisoner held in an out-of-state jurisdiction who is not represented by counsel and who does not have access to Florida legal materials has been deprived of meaningful access to Florida courts. See Ruiz v. State, 3 So.3d 385 (Fla. 2d DCA 2009); Ramsey v. State, 965 So.2d 854 (Fla. 2d DCA 2007); Demps v. State, 696 So.2d 1296 (Fla. 3d DCA 1997). In those cases, it appeared that the time for filing a postconviction motion was, indeed, tolled.
We therefore remand the issue to the trial court, and direct it to determine whether in Harvey’s case the time for filing a rule 3.850 petition was tolled because of his continuous incarceration in federal prison since 1989. If the trial court so determines, it should allow as timely filed a post-conviction petition filed within two years from Harvey’s return to Florida’s prison system, and consider whether any petition so filed states grounds for relief.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Harvey v. The Cir. Court of the Eleventh Jud. Cir., 191 So. 3d 471 (Fla. 3d DCA 2024)
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Gomez v. State (Fla. 3d DCA 2023)
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Demps v. State, 696 So. 2d 1296 (Fla. 3d DCA 1997)
- Howell M. Ramsey v. State, 965 So. 2d 854 (Fla. 2d DCA 2007)
- Ruiz v. State, 3 So. 3d 385 (Fla. 2d DCA 2009)
- Rogers v. State, 673 So. 2d 92 (Fla. 3d DCA 1996)
- Duque v. State, 983 So. 2d 35 (Fla. 3d DCA 2008)