JESSIE SAAVEDRA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jessie Saavedra appeals the denial of his post-conviction relief petition filed under Florida Rule of Criminal Procedure 3.850. The court reverses, finding that Saavedra's petition was timely filed and remands for consideration on the merits, including his claim that he was improperly denied credit for time served.
Saavedra's 3.850 petition was timely filed because the two-year deadline ran until Monday, August 31, 2009 (not Saturday, August 30), and under the mailbox rule, his motion was deemed filed when placed in prison officials' hands on that date. Additionally, Saavedra is entitled to remand for determination of whether he waived credit for time served, as any such waiver must be clearly shown on the record and cannot be presumed.
[1] The two-year time limitation for filing a motion for post-conviction relief begins to run when appellate proceedings have concluded and the court issues a mandate, or thi…
[2] Under the mailbox rule, a motion is considered filed on the date it is placed into the hands of prison officials for mailing.
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Join FLexlaw to unlock all legal intelligence“The two-year time limitation for filing motions for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 does not begin to run until appellate proceedings have concluded and the court issues a mandate or thirty days after the judgment and sentence become final if no direct appeal is filed.”
Establishes the rule for when the two-year deadline begins to run for 3.850 petitions
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Join FLexlaw to unlock all legal intelligenceSaavedra was convicted and sentenced on July 31, 2007, to a split sentence involving incarceration and probation. He did not file a direct appeal, mak…
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Jessie Saavedra appeals from a final order denying his petition for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.
The denial of Saavedra’s rule 3.850 motion as untimely was improper. The two-year time limitation for filing motions for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 does not begin to run until appellate proceedings have concluded and the court issues a mandate or thirty days after the judgment and sentence become final if no direct appeal is filed. See Gust v. State, 535 So.2d 642 (Fla. 1st DCA 1988). Because the appellant did not file a direct appeal, his July 31, 2007, conviction and sentence became final and the two-year time limitation began to run on August 30, 2007. Two years from that date was Saturday, August 30, 2009. Florida Rule of Criminal Procedure 3.040 specifically provides that the last date of the period so computed shall be counted, unless it is Saturday, Sunday or a legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or a legal holiday. The record shows that Saavedra placed his 3.850 petition into the correctional facility’s hands for mailing on Monday, August 31, 2009, and thus Saavedra’s motion was timely filed. See Thompson v. State, 761 So.2d 324 (Fla.2000) (holding that under the mailbox rule, the date that a motion is placed into the hands of prison officials for filing is the date that the motion is considered filed). We reverse for consideration of Saavedra’s petition on the merits.
Saavedra raises an issue regarding the alleged failure of the trial court to award credit for time served as part of his probation violation plea agreement. Although this issue is more appropriately raised via a rule 3.800 petition, the order on appeal concluded that the defendant was sentenced based only on receiving credit from his last booking date of May 8, 2009, citing to the sentencing transcript.
A defendant who is sentenced to incarceration because he violated the probationary portion of a split sentence is entitled to receive credit for time served in prison before being placed on probation. See Hines v. State, 906 So.2d 1137 (Fla. 3d DCA 2005); Fulcher v. State, 875 So.2d 647, 648 (Fla. 3d DCA 2004); Ryan v. State, 837 So.2d 1075 (Fla. 3d DCA 2003); Cozza v. State, 756 So.2d 272 (Fla. 3d DCA 2000). Although a defendant can waive credit for time served in prison on the original sentence as part of a negotiated plea agreement, such waiver must be clearly shown on the record and cannot be presumed. See Agharaumunna v. State, — So.3d -, 2010 WL 3766776 (Fla. 3d DCA 2010) (reversing and remanding be*193cause the attached documents do not conclusively refute the defendant’s claim that he is owed credit for time served); Isaac v. State, 992 So.2d 304, 305 (Fla. 3d DCA 2008) (holding that although a defendant can waive credit for time served in prison on the original sentence as part of a negotiated plea agreement, such waiver must be clearly shown on the record and cannot be presumed).
Although the transcript of defendant’s probation violation hearing and sentencing is in the record, it does not show that Saavedra was informed that he would not receive credit for time served as a result of his plea, nor does it show that Saavedra explicitly waived any credit for time served. His sentencing record is not in the record before us. If Saavedra did not clearly waive his right to credit for time served during the incarcerative portion of the split sentence, then he is entitled to such credit. Because the present record does not conclusively refute Saave-dra’s claim to credit for the incarcerative portion of his split sentence, the order must be reversed and the cause remanded for further proceedings. See Fla. R. App. P. 9.141(b)(2)(D); Fla. R. App. P. 9.140(i).
Reversed and remanded.
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Citator
Cited By (11 total)
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McCALL v. State, 88 So. 3d 1015 (Fla. 2d DCA 2012)…l court to order that Mr. McCall receive credit for the time that he served in prison on the incarcerative portion of his split sentence. See § 921.0017, Fla. Stat. (1995); Downing v. State, 779 So .2d 562, 563 (Fla. 2d DCA 2001); Saavedra v. State, 59 So. 3d 191, 192 (Fla. 3d DCA 2011); Smith v. State, 921 So. 2d 794, 796 (Fla. 5th DCA 2006). Accordingly, we directed the parties to file supplemental briefs addressing the issue of Mr. McCall’s right to credit for the time that he served in prison before the…
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Pearson v. State, 141 So. 3d 722 (Fla. 3d DCA 2014)…led by the mailroom official. The prison mailroom log shows the petition was placed in outgoing mail to the Clerk of Court on August 9, 2013, exactly two years from the date of conviction and sentence. As stated by this Court in Saavedra v. State, 59 So. 3d 191 (Fla. 3d DCA 2011), “[t]he two-year time limitation for filing motions for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 does not begin to run until [*723] appellate proceedings have concluded and the court issues a man…
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Sadler v. State, 141 So. 3d 1266 (Fla. 1st DCA 2014)…ursuant to this rule to be brought within two years of the movant’s judgment and sentence becoming final. If no direct appeal is taken, a judgment and sentence become final after the 30-day period for filing an appeal has expired. Saavedra v. State, 59 So. 3d 191, 192 (Fla. 3d DCA 2011). Here, the appellant was sentenced on October 16, 2008, and he did not seek a direct appeal. Therefore, the appellant had until November 17, 2010, to bring a timely rule 3.850 motion, and the instant motion was filed almost t…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thompson v. State, 761 So. 2d 324 (Fla. 2000)
- Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988)
- Cleveland Grant v. State, 837 So. 2d 1075 (Fla. 4th DCA 2003)
- Fulcher v. State, 875 So. 2d 647 (Fla. 3d DCA 2004)
- Hines v. State, 906 So. 2d 1137 (Fla. 3d DCA 2005)
- Connor McDUFFIE v. Scotty's, Inc., 756 So. 2d 272 (Fla. 5th DCA 2000)
- Cozza v. State, 756 So. 2d 272 (Fla. 3d DCA 2000)
- Isaac v. State, 992 So. 2d 304 (Fla. 3d DCA 2008)