ROBERTO ALBERTO CEPERO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the trial court's denial of a motion for return of property, holding that a pending petition for certiorari to the United States Supreme Court tolls the sixty-day deadline for filing such motions under Florida's property return statute.
A petition for certiorari pending in the United States Supreme Court tolls the time period for filing a motion for return of property under Florida Statutes Chapter 705.
[1] A petition for certiorari pending in the United States Supreme Court tolls the time period for filing a motion for return of property under Florida Statutes Chapter 705,…
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Join FLexlaw to unlock all legal intelligenceAppellant Cepero filed a motion for return of property while a petition for certiorari of his convictions was pending in the United States Supreme Cou…
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We reverse the trial court’s order denying appellant’s motion for return of property, as the state concedes error. The trial court denied the motion as untimely, but the motion was filed while a petition for certiorari of appellant’s convictions was pending in the United States Supreme Court. In several related contexts — for calculating the time for filing post-conviction motions under Florida Rule of Criminal Procedure 3.850, and the time for filing motions under the federal Anti-Terrorism and Effective Death Penalty Act (“AED-PA”), 28 U.S.C. § 2254(d)(1) — courts have held that, if such a petition is pending, the conviction is not final until the U.S. Supreme Court disposes of it. See Gonzalez v. Thaler, 132 S.Ct. 641, 653 (2012) (time for filing under AEDPA); Huff v. State, 569 So.2d 1247, 1250 (Fla.1990) (time for filing under Rule 3.850). The state agrees that this same logic applies to time for claiming evidence under Chapter 705, which provides that the sixty-day time period begins to run “after the conclusion of the proceeding” under section 705.105(1), Florida Statutes (2013), or “after final disposition of the proceeding” under section 705.101(6), Florida Statutes (2013). We agree with the state that the petition is timely.
Reversed and remanded for further proceedings.
WARNER, MAY and KLINGENSMITH, JJ., concur.
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Citator
Cited By
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Eugene v. State, 226 So. 3d 1032 (Fla. 4th DCA 2017)…ion on November 29, 2011. Eugene v. State, 76 So. 3d 937 (Fla. 2011). His motion therefore was filed prior to the conclusion of his case. [*1034] We reversed a trial court order denying a motion for return of property as untimely in Cepero v. State, 174 So. 3d 469 (Fla. 4th DCA 2015). There, the defendant moved for return of property while his petition for writ of certiorari to the United States Supreme Court was pending. We held that the defendant’s case was not final for purposes of running the sixty-day pe…
Authorities Cited
- Huff v. State, 569 So. 2d 1247 (Fla. 1990)
- Gonzalez v. Thaler, 565 U.S. 134 (U.S. 2012)