ROCHELLE CATHERINE DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Davis appealed the trial court's order denying her Rule 3.850 motion as untimely filed. The motion was filed five days after the two-year deadline established by Florida Rule of Criminal Procedure 3.850. The court affirmed the trial court's timeliness ruling but indicated that Davis may seek a waiver of the time limitation if she can demonstrate that her counsel neglected to file the motion timely.
The court affirmed that the motion was untimely filed because Davis was represented by counsel and therefore not entitled to the Mailbox Rule; the filing date is when counsel filed the motion, not when Davis placed it with prison officials. However, under Rule 3.850(b)(3), Davis may seek a waiver of the two-year filing bar if she can demonstrate that counsel neglected to file the motion timely.
[1] A pro se prisoner's filings are considered filed when placed into the hands of prison officials for mailing under the Mailbox Rule.
[2] A defendant represented by counsel is not entitled to the benefit of the Mailbox Rule for filing deadlines.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“As Appellant was represented by counsel, she is not entitled to the benefit of the Mailbox Rule.”
Establishes that pro se prisoner protections do not apply when a party is represented by counsel.
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Join FLexlaw to unlock all legal intelligenceDavis's underlying judgment and sentence became final on April 30, 2008, when the appellate court dismissed her direct appeal. Under Rule 3.850, she h…
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Appellant has appealed an order denying her rule 3.850 motion as untimely filed in the trial court. Appellant’s underlying judgment and sentence became final on April 30, 2008, when this court issued an order dismissing her direct appeal. Pursuant to rule 3.850, Appellant had until April 30, 2010, to timely file a rule 3.850 motion. The record appears to indicate that Appellant did not place the motion into the hands of the correctional institution for mailing but, instead, she retained counsel who filed a notice of appearance on *861May 4, 2010. On May 5, 2010, counsel filed the instant motion on Appellant’s behalf. The trial court dismissed the motion because it was untimely filed. As Appellant was represented by counsel, she is not entitled to the benefit of the Mailbox Rule. See Haag v. State, 591 So.2d 614 (Fla.1992) (discussing that pro se prisoner filings are to be considered filed when placed into the hands of prison officials for mailing). Thus, the date of filing is the date that counsel filed the motion. See generally Fla. R. Civ. P. 1.080(e).
While we affirm the trial court’s ruling that the motion was untimely filed, Florida Rule of Criminal Procedure 3.850(b)(3) allows for a waiver of the two-year filing bar when counsel, “through neglect, failed to file the motion.” If such a situation applies 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.
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Kovarick v. State, 64 So. 3d 193 (Fla. 2d DCA 2011)…filed the current motion raising three claims of relief. The postconviction court correctly noted that because Kovarick is represented by counsel, he is not entitled to the benefit of the mailbox rule and the file-stamp controls. See Davis v. State, 56 So. 3d 860, 861 (Fla. 1st DCA 2011); see also Joseph v. State, 835 So. 2d 1221, 1222 n. 2 (Fla. 5th DCA 2003). However, October 16, 2010 — two years after the judgment and sentence became final — fell on a Saturday. Therefore, the period for filing a timely po…
Authorities Cited
- State v. Thurston McCLAIN, 591 So. 2d 614 (Fla. 1992)
- Haag v. State, 591 So. 2d 614 (Fla. 1992)
- Raphael Marice Tinsley v. State, 41 So. 3d 334 (Fla. 1st DCA 2010)
- Johnson v. State, 7 So. 3d 643 (Fla. 3d DCA 2009)
- Butler v. State, 7 So. 3d 643 (Fla. 3d DCA 2009)