JENNARD HAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jennard Ham appealed an order denying his petition for an extension of time to file a second postconviction relief motion under Florida Rule of Criminal Procedure 3.850. The appellate court dismissed the appeal because an order denying a motion for extension of time to file a postconviction motion is nonfinal and not immediately appealable; instead, the defendant must file the intended motion and raise timeliness issues within that motion.
An order denying a motion for extension of time to file a postconviction motion is not a final, appealable order and should not be appealed. Instead, the defendant must file the intended postconviction motion as soon as possible, alleging grounds and explaining the timeliness issue, allowing the trial court to determine timeliness and successiveness on the merits.
[1] An order denying a petition seeking an extension of time to file a second motion for postconviction relief is a nonfinal order and thus not immediately appealable.
[2] When a petition for an extension of time to file a postconviction motion is denied, the proper procedure is to file the intended motion as soon as possible, alleging grou…
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Join FLexlaw to unlock all legal intelligence“when a motion for extension to file a postconviction motion is denied, the defendant should not appeal that order, but should instead file the intended motion as soon as possible, alleging the grounds for the motion to the best of the defendant's ability and further alleging the reason why the motion is untimely.”
Establishes the proper procedure when an extension motion is denied—file the motion rather than appeal the denial
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Join FLexlaw to unlock all legal intelligenceHam pleaded guilty to trafficking in cocaine in 2006 and was sentenced to fifteen years in prison. His judgment and sentence were affirmed on direct a…
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Jennard Ham appeals an order denying a petition seeking an extension of time to file his second motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Because such an order is nonfinal, we dismiss this appeal.
In 2006, Ham pleaded guilty to trafficking in cocaine and was sentenced to fifteen years in prison. The judgment and sentence were affirmed on direct appeal. See Ham v. State, 963 So.2d 709 (Fla. 2d DCA 2007) (table decision). Because the mandate issued on September 21, 2007, Ham had until September 21, 2009, to timely file a rule 3.850 motion. See Fla. R.Crim. P. 3.850(b). Ham did file one rule 3.850 motion in November 2007, the denial of which was affirmed by this court. See Ham v. State, 999 So.2d 650 (Fla. 2d DCA 2009) (table decision).
Then, in October 2009, Ham filed a petition with the trial court asking for additional time to file a second rule 3.850 motion. Ham’s petition essentially requested permission to file a second postconviction motion without risk that it would be dismissed as successive under rule 3.850(f). The postconviction court summarily denied Ham’s petition because he had failed to attach a copy of his postconviction motion. The court’s order noted that Ham could *190appeal the decision to this court within thirty days. This was erroneous advice.
[W]hen a motion for extension to file a postconviction motion is denied, the defendant should not appeal that order, but should instead file the intended motion as soon as possible, alleging the grounds for the motion to the best of the defendant’s ability and further alleging the reason why the motion is untimely. Thereafter, the [postconviction] court is authorized and has discretion to dispose of the motion on the issue of timeliness or on any other dispositive issue. Obviously, the [postconviction] court cannot grant the motion in favor of the defendant unless it first determines that the motion was timely or that its earlier motion denying the extension warrants reconsideration. This court will review the denial of the motion to extend time, if necessary, when reviewing the order disposing of the postconviction motion.
Manning v. State, 28 So.3d 971, 973 (Fla. 2d DCA 2010). Because, at this juncture, we do not have a final, appealable order for review, we dismiss this appeal. Ham shall have sixty days following the date that this opinion becomes final to file his rule 3.850 motion for postconviction relief. See id. Once he files the motion, the trial court can determine the issues of timeliness and successiveness as outlined by the case law and can then dispose of the motion on the merits, if appropriate.
Dismissed.
KELLY and WALLACE, JJ., Concur.
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Colon-Gonzalez v. State, 227 So. 3d 142 (Fla. 2d DCA 2017)…order denying his petition seeking an extension of time to file a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Because such an order is not a final, appealable order, we must dismiss this appeal. See Ham v. State, 36 So. 3d 189, 190 (Fla. 2d DCA 2010); Manning v. State, 28 So. 3d 971, 973 (Fla. 2d DCA 2010). As we did in Ham and Manning, we give Colon-Gonzalez sixty days following the date that this opinion becomes final to file his rule 3.850 motion. Once he files the mot…
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Payton v. State, 58 So. 3d 933 (Fla. 2d DCA 2011)…t this opinion becomes final to file his rule 3.850 motion for postconviction relief, at which time the trial court can determine the issues of timeliness and suc-cessiveness and dispose of the motion on the merits, if appropriate. See Ham v. State, 36 So. 3d 189, 190 (Fla. 2d DCA 2010). We note that if Payton chooses to file a rule 3.850 motion, it would be the second such motion he has filed. The postconviction court denied his first motion [*934] as untimely, and this court affirmed the order. See Payton…
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Stevens v. State, 57 So. 3d 960 (Fla. 2d DCA 2011)…on to the best of the defendant’s ability and further alleging the reason why the motion is untimely”; the trial court then has discretion to dispose of the motion on the issue of timeliness or on any other dispositive issue); see also Ham v. State, 36 So. 3d 189, 190 (Fla. 2d DCA 2010) (noting that the trial court’s order denying a motion for extension of time erroneously advised Ham that he could appeal that order within thirty days). Dismissed. DAVIS and LaROSE, JJ., Concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Manning v. State, 28 So. 3d 971 (Fla. 2d DCA 2010)
- Eyleen Caraballo v. Fla. Unemployment Appeals Comm'n, 28 So. 3d 971 (Fla. 1st DCA 2010)