EDUARDO MOLINA BRACERO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the summary denial of Bracero's postconviction relief motion because the trial court failed to establish that the motion was untimely filed, and remanded for consideration of the merits if the motion was timely.
A postconviction relief motion under Florida Rule of Criminal Procedure 3.850 cannot be summarily denied as untimely without the trial court attaching record evidence refuting the movant's allegations regarding the timeliness of filing.
[1] In ruling on the timeliness of a rule 3.850 postconviction relief motion, the trial court must accept the movant's factual allegations as true unless refuted by the recor…
Previewing 1 of 1 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“the court must accept the movant's factual allegations as true in a rule 3.850 motion to the extent they are not refuted by the record”
Citing Franqui v. State, 59 So. 3d 82, 95 (Fla. 2011), establishing the standard for evaluating factual allegations in postconviction motions.
Bracero was resentenced on October 1, 2009, making his judgment final on October 31, 2009, with a two-year filing window expiring October 31, 2011. He…
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Eduardo Molina Bracero appeals the summary denial of his motion for postcon-viction relief filed May 18, 2011. The Florida Supreme Court transferred the motion to the Tenth Judicial Circuit Court in and for Polk County for consideration as a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The postconviction court denied the motion as untimely. We reverse.
After his direct appeal, this court remanded the case and ordered that Bracero be resentenced. See Bracero v. State, 10 So.3d 664, 665 (Fla. 2d DCA 2009). In his motion, Bracero alleged that the court re-sentenced him on October 1, 2009. Based on this date, his judgment and sentence became final on October 31, 2009, and the two-year window for filing a rule 3.850 motion expired on October 31, 2011. Assuming his allegations are true, the motion filed on May 18, 2011, was timely. See Franqui v. State, 59 So.3d 82, 95 (Fla. 2011) (holding that the court must accept the movant’s factual allegations as true in a rule 3.850 motion to the extent they are not refuted by the record). The postcon-viction court has not attached portions of the record supporting its determination that Bracero’s motion was untimely filed. Accordingly, we remand for further proceedings and if it becomes apparent on remand that the motion was timely filed then the court shall consider the merits of the motion.
Reversed and remanded.
NORTHCUTT and KHOUZAM, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Franqui v. State, 59 So. 3d 82 (Fla. 2011)
- Bracero v. State, 10 So. 3d 664 (Fla. 2d DCA 2009)