FRANKLIN E. TREADWAY
v.
STATE OF FLORIDA
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The two-year time limit for filing a Rule 3.850 postconviction motion is tolled while a petition for discretionary review is pending before the Florida Supreme Court when the petition cites conflicting district court decisions.
[1] A motion for postconviction relief is timely if filed within two years of the date a mandate issues, unless the time is tolled by subsequent appellate proceedings.
[2] The two-year time limit for filing a postconviction motion is tolled until the Florida Supreme Court issues an order denying a petition for discretionary review.
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Join FLexlaw to unlock all legal intelligence“Because Treadway included a 'citation effectively establishing a point of law upon which the decision rest[ed],' The Florida Star v. B.J.F., 530 So. 2d 286, 288 (Fla. 1988), and 'the citation explicitly note[d] a contrary holding of another district court,' id. at 288 n.3, the supreme court had jurisdiction to address Treadway's request for discretionary review.”
Explanation of why the Rule 3.850 deadline was tolled
Treadway pleaded guilty to sexual battery and lewd molestation charges and received a 40-year concurrent sentence. After direct appeal and a successfu…
The full statement of facts, procedural history, and disposition for this case are member content.
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DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
FRANKLIN E. TREADWAY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D23-1690
December 15, 2023
Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pasco County; Gregory G. Groger, Judge. Franklin E. Treadway, pro se.
PER CURIAM.
Franklin Treadway appeals the order dismissing his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850 as untimely and denying his claim of illegal sentence as successive. We affirm in part and reverse in part.
Treadway pleaded guilty to three counts of sexual battery on a person twelve years of age or older but younger than eighteen years of age by a person in a position of familial authority and two counts of lewd or lascivious molestation of a person twelve years of age or older but less than sixteen years of age by a person eighteen years of age or older. The trial court sentenced him to concurrent terms of forty years' imprisonment on all counts. Treadway appealed and filed a motion under Florida Rule of Criminal Procedure 3.800(b)(2), arguing that his sentences for the second-degree felony of lewd molestation in counts three and five were illegal. The trial court granted his motion and resentenced him on those counts to 399 months' imprisonment. Treadway filed a second rule 3.800(b)(2) motion that the trial court denied. This court affirmed Treadway's judgment and sentences based on Champagne v. State, 269 So. 3d 629 (Fla. 2d DCA 2019), but certified conflict with Gabriel v. State, 325 So. 3d 96 (Fla. 5th DCA 2019). Treadway v. State, 311 So. 3d 93, 93 (Fla. 2d DCA 2020). This court also certified a question of great public importance. Id. at 93–94. The mandate issued on March 5, 2021.
Treadway then sought discretionary review of this court's decision in Treadway in the Florida Supreme Court. After directing Treadway to show cause why its decision in State v. Gabriel, 314 So. 3d 1243 (Fla. 2021) (approving Champagne and quashing the Fifth District's decision in Gabriel), was not controlling and why the court should not decline to exercise jurisdiction, the supreme court denied Treadway's request for discretionary review by order dated June 18, 2021. Under the mailbox rule,1 Treadway filed a motion and amended motion for postconviction relief on March 15 and May 15, 2023. The postconviction court dismissed grounds one, two, three, four, five, and seven as untimely because the motions were filed more than two years after the mandate issued in Treadway's direct appeal. This was error. Because Treadway included a "citation effectively establishing a point of law upon which the decision rest[ed]," The Florida Star v. B.J.F., 530 So. 2d 286, 288 (Fla. 1988), and "the citation explicitly note[d] a contrary
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Treadway v. State, 325 So. 3d 96 (Fla. 2d DCA 2023)…at the trial court denied. This court affirmed Treadway's judgment and sentences based on Champagne v. State, 269 So. 3d 629 (Fla. 2d DCA 2019), but certified conflict with Gabriel v. State, 325 So. 3d 96 (Fla. 5th DCA 2019). Treadway v. State, 311 So. 3d 93, 93 (Fla. 2d DCA 2020). This court also certified a question of great public importance. Id. at 93–94. The mandate issued on March 5, 2021. Treadway then sought discretionary review of this court's decision in Treadway in the Florida Supreme…1 / 2
Authorities Cited
- Haag v. State, 591 So. 2d 614 (Fla. 1992)
- Ridge Gabriel v. State, 248 So. 3d 265 (Fla. 5th DCA 2018)
- Cardali v. State, 794 So. 2d 719 (Fla. 3d DCA 2001)
- Mullins v. State, 974 So. 2d 1135 (Fla. 3d DCA 2008)
- Treadway v. State, 325 So. 3d 96 (Fla. 2d DCA 2023)