KARL KERR, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Karl Kerr appealed the dismissal of his postconviction Rule 3.850 motion for ineffective assistance of counsel regarding speedy trial rights. The court reversed the dismissal of one case on timeliness grounds, applying the prisoner mailbox rule to determine that Kerr's amended motion was timely filed despite discrepancies in the date stamps.
The court held that under the prisoner mailbox rule, timeliness is measured from when the prisoner placed the document in prison officials' hands for mailing, and the certificate of service date creates a rebuttable presumption of that date. Absent evidence from the State to rebut this presumption, Kerr's amended motion should be deemed timely and considered on the merits.
[1] Under the prisoner mailbox rule, the timeliness of a pleading is measured from the date the document is placed in the hands of prison officials for mailing.
[2] The date on a certificate of service creates a rebuttable presumption that a document was placed in prison officials' hands on that date.
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Join FLexlaw to unlock all legal intelligence“Under the prisoner mailbox rule, the timeliness of Kerr's pleading should be measured from the date he placed the document in the hands of prison officials for mailing.”
Establishes the governing legal standard for determining when a prisoner's motion is timely filed.
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Join FLexlaw to unlock all legal intelligenceKerr filed timely postconviction motions in two circuit court cases on August 16, 2013. His motion in case 2010-CF-8438 was dismissed twice for facial…
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Karl Kerr Jr. filed timely motions for postconviction relief under Florida Rule of Criminal Procedure 3.850 in two circuit court cases, numbers 2010-CF-8438 and 2011-CF-1183, on approximately August 16, 2013. The motion in case number 2011-CF-1183 was denied on the merits, and we affirm without comment the post-conviction court’s orders directed to this motion. However, the motion in case number 2010-CF-8438 was dismissed as untimely and successive. Because the motion appears to have been timely filed under the mailbox rule, we reverse and remand for the postconviction court to reconsider the motion.
The motion filed in case number 2010-CF-8438 was dismissed twice for facial insufficiency. The second dismissal order found Kerr’s claim that his counsel was ineffective for waiving his speedy trial rights was facially insufficient and gave him thirty days from September 18, 2013, to amend the claim. Kerr then filed an amended motion, although it was not titled as such. This amended motion arrived for filing in the circuit court on November 27, 2013. However, the certificate of service and a corrections facility date stamp on *124the motion reflect that it was filed on September 27, 2018. The postconviction court, without addressing the timeliness of this motion, ordered the State to respond to the claim of ineffective assistance of counsel regarding Kerr’s speedy trial rights.
Citing the circuit court filing date of November 27, 2018, the State responded that the amended motion was untimely filed beyond the court-ordered time limit and beyond the two-year filing period of rule 3.850, which expired on September 13, 2013. In addition, the State noted that after the order to show cause was issued, Kerr attempted to amend his motion again but the postconviction court denied the motion to amend on the ground that it had already issued an order to show cause to the State. The State concluded that the first amended motion was untimely and that the claim of ineffective assistance of counsel regarding Kerr’s speedy trial waiver was otherwise successive. The postconviction court adopted the State’s position without further elaboration in its final order denying the motion. Neither the postconviction court nor the State addressed the inconsistency between the date on the certificate of service and the actual filing date of the amended motion.
Under the prisoner mailbox rule, the timeliness of Kerr’s pleading should be measured from the date he placed the document in the hands of prison officials for mailing. See Scullock v. Gee, 133 So.3d 1208, 1209 (Fla. 2d DCA 2014) (citing Haag v. State, 591 So.2d 614 (Fla.1992)). The date on the certificate of service creates a rebuttable presumption that the motion was actually placed in an official’s hands on that date. Id. (citing Thompson v. State, 761 So.2d 324, 325 (Fla.2000)). Absent evidence from the State to rebut the presumption, Kerr’s amended motion should be deemed timely and the postcon-viction court should address it on the merits. Accordingly, we reverse the portion of the postconviction court’s order directed to case number 2010-CF-8438 and remand for reconsideration.
Affirmed in part; reversed in part; remanded.
NORTHCUTT, MORRIS, and BLACK, JJ., Concur.
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Citator
Cited By
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Gillette v. State (Fla. 2d DCA 2024)…onsequently, we use the date Mr. Gillette furnished. We have previously stated that, "[t]he date on the certificate of service creates a rebuttable presumption that the motion was actually placed in an official's hands on that date." Kerr v. State, 148 So. 3d 123, 124 (Fla. 2d DCA 2014). The State failed to rebut this presumption. In fact, the accumulated anomalies in our record indicate that the September 9, 2021, letter was timely filed. For one thing, Mr. Gillette's September 9, 4 The State does not con…
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Gillette v. State (Fla. 2d DCA 2024)…onsequently, we use the date Mr. Gillette furnished. We have previously stated that, "[t]he date on the certificate of service creates a rebuttable presumption that the motion was actually placed in an official's hands on that date." Kerr v. State, 148 So. 3d 123, 124 (Fla. 2d DCA 2014). The State failed to rebut this presumption. In fact, the accumulated anomalies in our record indicate that the September 9, 2021, letter was timely filed. For one thing, Mr. Gillette's September 9, 4 The State does not con…
Authorities Cited
- State v. Thurston McCLAIN, 591 So. 2d 614 (Fla. 1992)
- Haag v. State, 591 So. 2d 614 (Fla. 1992)
- Thompson v. State, 761 So. 2d 324 (Fla. 2000)
- Scullock v. Hillsborough Cnty. Sheriff David GEE & Deputy Joseph Akos, 133 So. 3d 1208 (Fla. 2d DCA 2014)