BRANDON KOVARICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the denial of Kovarick's Rule 3.850 postconviction motion, finding it was timely filed despite being submitted two years after judgment became final because the two-year deadline fell on a Saturday and was extended to Monday. The motion was remanded for the trial court to allow amendment to cure deficiencies in the oath requirement rather than dismissal on timeliness grounds.
The motion was timely filed because when the deadline falls on a Saturday, the period for filing is extended to the next business day. The court reversed the denial and remanded for the trial court to allow Kovarick thirty days to amend the motion to include a proper oath, and to consider the motion on the merits if properly amended.
[1] When the last day for filing a motion falls on a Saturday, the period for filing is extended to the next day that is not a Saturday, Sunday, or legal holiday.
[2] A postconviction motion filed by counsel is timely if filed on or before the extended deadline when the original deadline falls on a Saturday.
Previewing 2 of 5 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“October 16, 2010 — two years after the judgment and sentence became final — fell on a Saturday. Therefore, the period for filing a timely postconviction motion was extended to October 18, 2010, and Kovarick's motion was timely.”
Establishes the core holding that the deadline extension under the rules of civil procedure applies to postconviction motions when the deadline falls on a weekend.
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Join FLexlaw to unlock all legal intelligenceKovarick filed a postconviction relief motion on October 18, 2010, through counsel, raising three claims for relief. The two-year deadline for filing …
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We reverse the denial of Brandon Ko-varick’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 because the postconviction court erred when it denied the motion as untimely.
The file-stamp by the clerk of the circuit court shows that on October 18, 2010, Kovarick, through counsel, 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 postconviction motion was extended to October 18, 2010, *194and Kovarick’s motion was timely. See Fla. R.Crim. P. 3.040 (stating that the period for computation of time “shall run until the end of the next day that is neither a Saturday, Sunday, nor legal holiday”); Fla. R.App. P. 9.420(f) (same). The motion, however, fails to contain a properly executed oath and is facially insufficient. See Fla. R.Crim. P. 3.850(c), 3.987.
Accordingly, we reverse and remand for the postconviction court to provide Kovar-ick thirty days from the date this opinion is filed to amend the motion by including a proper oath. If he fails to file a timely amendment, the postconviction court may enter a final order dismissing the motion. However, if Kovarick properly amends, the postconviction court shall consider the motion on the merits.
Reversed and remanded.
WHATLEY, NORTHCUTT, and CRENSHAW, JJ., Concur.
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Citator
Authorities Cited
- Maille Joseph v. State, 835 So. 2d 1221 (Fla. 5th DCA 2003)
- Davis v. State, 56 So. 3d 860 (Fla. 1st DCA 2011)