BILLY JAMES LEWIS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Billy James Lewis, Jr. appealed the summary denial of his rule 3.850 post-conviction relief motion. The court affirmed the denial, holding that Lewis's motion was untimely filed more than two years after his direct appeal concluded.
A judgment and sentence become final when direct-review proceedings have concluded and jurisdiction returns to the trial court. As to Lewis's affirmed convictions for attempted robbery, aggravated assault, and resisting arrest, the judgment became final when the Florida Supreme Court dismissed his petition on May 19, 2011. Therefore, Lewis's motion filed on June 19, 2013, was untimely.
[1] A judgment and sentence become final for purposes of Florida Rule of Criminal Procedure 3.850(b) when any direct review proceedings have concluded and jurisdiction to ent…
[2] Where a direct appeal has been filed, the judgment and sentence become final upon the issuance of the appellate court's mandate.
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Join FLexlaw to unlock all legal intelligence“A judgment and sentence become final for the purpose of rule 3,850 when any direct- review proceedings have concluded and jurisdiction to entertain a post-conviction motion returns' to the trial court.”
Establishes the legal standard for when a judgment becomes final for post-conviction relief purposes
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Join FLexlaw to unlock all legal intelligenceLewis was convicted of attempted robbery with a firearm, armed kidnapping with a firearm, aggravated assault with a firearm, and resisting arrest with…
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Billy James Lewis, Jr. appeals the summary denial of his rule 3.850 motion for post-conviction relief. We conclude that the motion was untimely filed and affirm.
Lewis was convicted of attempted robbery with, a firearm, armed kidnapping with a firearm, aggravated assault with a firearm, and resisting arrest with violence. On direct appeal, we reversed the kidnapping conviction but otherwise affirmed. Lewis v. Stake, 50 So.3d 86 (Fla. 4th DCA 2010). The mandate issued on January 7, 2011. Lewis sought review in the Florida Supreme Court, but his petition was voluntarily dismissed on May 19, 2011. Lewis v. State, 64 So.3d 118 (Fla.2011). On June 22, 2011, the trial court entered an order vacating the conviction and sentence for kidnapping.
Lewis filed this rule 3.850 motion on June 19, 2013, challenging his remaining convictions. The State argued that the motion was without merit and untimely because it was filed more than two years after the direct appeal mandate issued on January 7, 2011. Lewis claimed the judgment and , sentence did not become final until after the trial court vacated the conviction and sentence for kidnapping on June 22, 2011. The trial court denied the motion, adopting the State’s response. Lewis appeals.
A judgment and sentence become final for the purpose of rule 3,850 when any direct- review proceedings have concluded and jurisdiction to entertain a post-conviction motion returns' to the trial court. Ward v. Dugger, 508 So.2d 778, 779 (Fla. 1st DCA 1987). In this case, as to the convictions for attempted robbery, aggravated assault, and resisting arrest, the judgment and sentence became final when the convictions were affirmed and review in the Florida Supreme Court was dismissed on May 19, 2011. See Perley v. State, 968 So.2d 679, 680 (Fla. 4th DCA 2007) (holding that where a defendant appeals multiple .convictions and one is reversed for further proceedings but the others are affirmed, the time for post-conviction relief on the affirmed convictions begins to run when jurisdiction is returned to the trial court). Lewis’s motion, filed more than two years later, was untimely. Fla. R.Crim. P. 3.850(b),
Affirmed.
WARNER, DAMOORGIAN and FORST, JJ., concur.
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Citator
Cited By
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Scotty Bartek v. State, 198 So. 3d 1009 (Fla. 5th DCA 2016)…untimely filed. See generally Ward v. Dugger, 508 So. 2d 778, 779 (Fla. 1st DCA 1987) (interpreting the phrase “become final” in rule 3.850(b) as being the date mandate issued). Accord Beaty v. State, 701 So. 2d 856, 857 (Fla.1997); Lewis v. State, 196 So. 3d 423 (Fla. 4th DCA 2016); Breland v. State, 58 So. 3d 326, 327 (Fla. 1st DCA 2011). We have reviewed Bartek’s other claims of error and find them to be without merit. AFFIRMED. TORPY and LAMBERT, JJ., concur. . Jurisdiction is proper pursuant to rule…
Authorities Cited
- Ward v. Dugger, 508 So. 2d 778 (Fla. 1st DCA 1987)
- Lewis v. State, 50 So. 3d 86 (Fla. 4th DCA 2010)
- Perley v. State, 968 So. 2d 679 (Fla. 4th DCA 2007)