MCDADE
v.
STATE
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A post-conviction relief motion filed within two years of an appellate court's mandate on direct appeal is timely under Rule 3.850(b), and summary denial based on a time-bar is improper when the motion falls within the statutory period.
[1] Under Florida Rule of Criminal Procedure 3.850(b), the two-year period for filing a post-conviction relief motion begins upon issuance of the appellate court's mandate on…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a judgment and sentence become final 'when any such direct review proceedings have concluded and jurisdiction to entertain a motion for post-conviction relief returns to the sentencing court.'”
Definition of when the two-year period begins under Rule 3.850(b)
Eric McDade appealed his conviction and received an affirming mandate on June 5, 2015. He filed a post-conviction relief motion on August 30, 2016, wh…
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Third District Court of Appeal
State of Florida
Opinion filed January 24, 2018. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D17-2642 Lower Tribunal No. 10-19926
________________
Eric McDade,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Stephen T. Millan, Judge.
Eric McDade, in proper person.
Pamela Jo Bondi, Attorney General, for appellee.
Before SUAREZ, LAGOA and SALTER, JJ.
PER CURIAM.
Defendant/appellant Eric McDade appeals the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850(b), on the grounds that McDade’s motion was time-barred.1 We reverse and remand for further consideration of the motion, concluding that it was timely under the terms of Rule 3.850.
Rule 3.850(b) provides a two-year period for the filing of a motion for post-
conviction relief “after the judgment and sentence become final.” For purposes of that provision, a judgment and sentence become final “when any such direct review proceedings have concluded and jurisdiction to entertain a motion for post-
conviction relief returns to the sentencing court.” Mullins v. State, 974 So. 2d
1135, 1137 (Fla. 3d DCA 2008) (quoting Ward v. Dugger, 508 So. 2d 778, 779 (Fla. 1st DCA 1987)). Where there has been a direct appeal, the judgment and sentence become final upon the issuance of the appellate court’s mandate on the direct appeal. See Beaty v. State, 701 So. 2d 856, 857 (Fla. 1997) (“[T]he district court of appeal’s opinion became final when no petition for rehearing was filed within fifteen days, and the two-year period for filing a motion for post-conviction relief began to run upon the issuance of that court’s mandate.”).
In the underlying case, McDade’s post-conviction motion, filed on August
30, 2016, was not untimely, as it was filed within the two-year period provided by
Rule 3.850(b). Specifically, since McDade filed a direct appeal, this Court’s affirming mandate, issued on June 5, 2015, triggered the two-year time period for
McDade to file a motion under Rule 3.850(b). See Beaty, 701 So. 2d at 857; see also Rogers v. State, 146 So. 3d 1263 (Fla. 2d DCA 2014); Mullins, 974 So. 2d
1135; Jones v. State, 602 So. 2d 606 (Fla. 1st DCA 1992). McDade’s post-
conviction motion, dated August 30, 2016, was filed well within the Rule’s two-
year limitation period. Accordingly, the order denying appellant’s motion for post-
conviction relief is reversed and remanded for consideration of the merits of the allegations.2
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Alphonso Lucas v. State (Fla. 3d DCA 2021)…hen a defendant attempts to mislead or delude the jury about his prior convictions, the State is entitled to further question the defendant concerning the convictions in order to negate any false impression”) (citations omitted); McDade v. State, 290 So. 3d 547, 547 n.1 (Fla. 3d DCA 2019) (same). See also § 90.701, Fla. Stat. (2019) (providing that a lay witness’ testimony “about what he or she perceived may be in the form of inference and opinion when: (1) The witness cannot readily, and with equal a…
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Maykel Beiro v. State, 140 So. 3d 590 (Fla. 3d DCA 2015)
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Jackson v. State, 278 So. 3d 345 (Fla. 3d DCA 2019)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ward v. Dugger, 508 So. 2d 778 (Fla. 1st DCA 1987)
- Beaty v. State, 701 So. 2d 856 (Fla. 1997)
- Mullins v. State, 974 So. 2d 1135 (Fla. 3d DCA 2008)
- Jones v. State, 602 So. 2d 606 (Fla. 1st DCA 1992)
- Rogers v. State, 146 So. 3d 1263 (Fla. 2d DCA 2014)