REYNALDO MILLETTE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellate court affirmed denial of belated postconviction motion where counsel had timely filed the underlying Rule 3.850 motion, but noted the postconviction court erred in dismissing the amended motion as untimely and preserved appellant's right to seek belated appellate review.
Where counsel timely filed a postconviction motion and timely amended it, the postconviction court properly denied the defendant's request for leave to file a belated motion, though the court erred in dismissing the amended motion as untimely.
[1] A defendant is not entitled to file a belated postconviction motion under Florida Rule of Criminal Procedure 3.850(b)(3) when counsel timely filed the underlying postconv…
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Join FLexlaw to unlock all legal intelligenceReynaldo Millette sought leave to file a belated postconviction motion under Florida Rule of Criminal Procedure 3.850(b)(3), claiming his privately re…
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Reynaldo Millette appeals the postcon-viction court order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.850(b)(3), wherein Mr. Millette sought leave to file a belated post-conviction motion on the basis that his privately retained counsel failed to timely file the motion. Because counsel did in fact file a timely motion for postconviction relief on August 22, 2012, and timely amended that motion on May 23, 2013, we affirm the postconviction court’s order. However, we note that the postconviction court erroneously dismissed the amended motion as untimely. See Rosier v. State, 144 So.3d 604 (Fla. 2d DCA 2014). It also appears Mr. Millette was not adequately informed of his right to seek appellate review of the postconviction court’s determination that the motion was untimely. Therefore, our affirmance is without prejudice to any right Mr. Millette may have to file a petition for belated appeal of the *539postconviction court order rendered July 23, 2013, dismissing as untimely his previous rule 3.850 motion filed by counsel; he has until July 23, 2015, to file a timely petition. See Fla. R. App. P. 9.141(c). Mr. Millette should reference this opinion in his petition for belated appeal.
Affirmed.
SILBERMAN and BLACK, JJ., Concur.
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Cited By
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Reynaldo Millette v. State, 176 So. 3d 1287 (Fla. 2d DCA 2015)…e the court improperly dismissed Millette’s second amended motion filed on May 23, 2013, we reverse and remand for the court to reconsider Millette’s claims-none of which were determined on the merits or refuted by the record. See Millette v. State, 148 So. 3d 538 (Fla. 2d DCA 2014); see also Rosier v. State, 144 So. 3d 604, 605 (Fla. 2d DCA 2014) (explaining that a timely filed rule 3.850 motion may be amended prior to the postconviction court’s disposition even after the two-year time period for filing a ti…
Authorities Cited
- Reashod Rosier v. State, 144 So. 3d 604 (Fla. 2d DCA 2014)