HOWARD FITZGERALD ORR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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On Confession of Error
The State concedes that this matter should be remanded for the trial court to consider appellant’s amended motion for postconviction relief which included the oath, the court found lacking in the original motion. See Spera v. State, 971 So.2d 754 (Fla.2007).
The trial court in its order found that, even if properly sworn, the motion would still be denied as untimely because appellant did not appeal following the judgments and sentences entered on October 14, 2010. As noted in the motion, and reflected in this Court’s records, appellant did in fact appeal his convictions and sentences in circuit court case number 2009CF011153AXX. Orr v. State, 83 So.3d 738 (Fla. 4th DCA 2012) (4D10-1575) (table). Our mandate affirming these convictions and sentences issued on May 30, 2012. Thus, the postconviction motion filed December 5, 2012 was timely as to this case number.
We therefore reverse and remand for further proceedings.
Reversed and Remanded.
DAMOORGIAN, C.J., WARNER and TAYLOR, JJ., concur.
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Citator
Cited By
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Fetzner v. State, 219 So. 3d 834 (Fla. 4th DCA 2017)…orneys for the State. We recognize that in other cases we have found this same judge’s treatment of defendants and defense counsel sufficient to warrant disqualification. See Montgomery v. State, 150 So. 3d 1231 (Fla. 4th DCA 2014); Arend v. State, 149 So. 3d 126 (Fla. 4th DCA 2014). We also note there were factual allegations in the defendant’s first motion, and in the record itself, indicating that some of the same conduct warranting disqualification in Arend and Montgomery may have been present in this ca…
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)