APOLLO HARDIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Apollo Hardin appeals the dismissal of his postconviction motion under Florida Rule of Criminal Procedure 3.850 as untimely. The court reverses, holding that Hardin's motion was timely because the two-year filing deadline begins when the United States Supreme Court denies certiorari review, not when the direct appeal mandate issued.
The court holds that the two-year deadline for filing a rule 3.850 motion commences when the Supreme Court denies certiorari review, not when the direct appeal mandate issues. Therefore, Hardin's motion filed exactly two years after the certiorari denial was timely.
[1] A two-year time limit for filing a motion for postconviction relief commences upon the denial of a petition for writ of certiorari by the United States Supreme Court.
[2] A notice of appeal does not divest a postconviction court of jurisdiction to rule on a timely filed motion for rehearing.
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Join FLexlaw to unlock all legal intelligence“A motion for postconviction relief must be filed within two years of the date on which the judgment and sentence become final. Fla. R.Crim. P. 3.850(b). However, when a defendant files a petition for writ of certiorari with the United States Supreme Court, this two-year deadline commences when the Supreme Court denies the review of the petition.”
Establishes the controlling legal standard that the two-year deadline is measured from Supreme Court certiorari denial, not from the direct appeal mandate.
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Join FLexlaw to unlock all legal intelligenceIn 2009, Hardin pleaded guilty to armed burglary, three counts of burglary, and scheming to defraud, receiving a life sentence. He filed a direct appe…
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Apollo Hardin appeals the dismissal of his postconviction motion filed under Florida Rule of Criminal Procedure 3.850. We reverse and remand for the court to reconsider Mr. Hardin’s motion.
In 2009, Mr. Hardin pleaded guilty to one count of armed burglary, three counts of burglary, and one count of scheming to defraud. The trial court sentenced him to life imprisonment. He filed a direct appeal from his judgment and sentences, which this court affirmed in 2012. Mr. Hardin then filed a timely petition for certiorari with the United States Supreme Court, which was denied on April 15, 2013.
When Mr. Hardin filed his rule 3.850 motion on April 15, 2015, the post-conviction court dismissed it as untimely because it had been filed more than two years after the mandate issued on his direct appeal. Although Mr. Hardin argued in. a motion for rehearing that his rule 3.850 motion was timely, the postconviction court found that he abandoned his motion for rehearing by filing a notice of appeal on July 1, 2015, which, the postconviction court believed, divested it of its jurisdiction. We reverse because Mr. Hardin filed a’ timely motion for postconviction relief following the denial of his certiorari petition with the United States Supreme Court.
A motion for postconviction relief must be filed within two years of the date on which the judgment and sentence become final. Fla. R.Crim. P. 3.850(b). However, when a defendant files a petition for writ of certiorari with the United States Supreme Court, this two-year deadline commences when the Supreme Court denies the review of the petition. See Huff v. State, 569 So.2d 1247, 1250 (Fla.1990); Davis v. State, 953 So.2d 612, 613 (Fla. 2d DCA 2007). As such, Mr. Hardin’s time to file a motion under rule 3.850 expired on April 15, 2015. His motion— filed exactly two years after the denial of his "certiorari petition — was, therefore, timely. .
Additionally, we note that the post-conviction court improperly denied Mr. Hardin’s motion for rehearing when it deemed the motion “abandoned” by his filing of a notice of appeal. Following the 2015 amendments to the Florida Rules of Appellate Procedure,1 if a party files an *235authorized and timely motion for rehearing but also files a notice of appeal before the postconviction court rules on the motion, the “appeal shall be held in abeyance, until the filing of a signed, written order disposing of the last such motion.” See Fla. R.App. P. 9.020(f)(3). The postconviction court had jurisdiction to rule on Mr. Hardin’s motion for rehearing and, at that juncture, should have recognized that his rule 3.850 motion was timely. See Huff, 569 So.2d at 1250; Davis, 953 So.2d at 613.
Accordingly, we reverse-and remand for the postconviction court to reconsider Mr. Hardin’s rule 3.850 motion.
Reversed and remanded with directions.
LaROSE and BADALAMENTI, JJ., Concur.
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Citator
Cited By
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Miller v. Jiyon Ko (Fla. 3d DCA 2025)…nge authorizes trial courts to dispose of timely and authorized motions for rehearing of final orders which remain pending after a notice of appeal has been filed, and requires the appellate court to hold the appeal in abeyance. See Hardin v. State, 189 So. 3d 233 (Fla. 2d DCA 2016); Carroll v. State, 157 So. 3d 385 (Fla. 2d DCA 2015) (holding the notice of appeal should have been held in abeyance until the trial court ruled on the motion to withdraw plea); Chipman v. State, 285 So. 3d 1005 (Fla. 2d DCA 2019)…
Authorities Cited
- Huff v. State, 569 So. 2d 1247 (Fla. 1990)
- In re Amendments to the Florida Rules of Appellate Procedure, 183 So. 3d 245 (Fla. 2014)
- Merlan Davis v. State, 953 So. 2d 612 (Fla. 2d DCA 2007)