JAMES MARK BRANHAM
v.
STATE OF FLORIDA
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An appellant's argument that an untimely postconviction motion should be excused due to attorney failure is not preserved for appeal when not raised below and must be presented through a sworn filing in the trial court.
[1] Arguments not raised in the trial court are not preserved for appellate review and must be presented through the appropriate procedural mechanism in the trial court, such…
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Join FLexlaw to unlock all legal intelligenceAppellant Branham filed an amended motion for postconviction relief that was dismissed as untimely. He appealed, arguing the untimely filing should be…
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Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Cynthia L. Cox and Dan L. Vaughn, Judges; L.T. Case No. 312011CF001411A.
Mark H. Klein of MHK Legal, PLLC, Coral Springs, for appellant. No appearance required for appellee. PER CURIAM. The order dismissing Appellant’s amended motion for postconviction relief as untimely is affirmed. Appellant’s argument that the untimely filing should be excused because he retained an attorney who failed to timely file the amendment was not raised below and is not preserved for appeal. The proper avenue for presenting such a claim is through a sworn filing in the trial court, which can conduct an evidentiary hearing on the issue if necessary. See Fla. R. Crim. P. 3.850(b)(3); Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999). Within the time remaining under the rule, Appellant may file a properly sworn motion in the trial court seeking leave to belatedly file the amended motion pursuant to rule 3.850(b)(3) and Steele.
Affirmed without prejudice. LEVINE, C.J., FORST and KUNTZ, JJ., concur.
* * * Not final until disposition of timely filed motion for rehearing.