The two-year period for filing a rule 3.850 motion begins when the Department of Corrections informs the prisoner of a gain time forfeiture, not when the judgment becomes final.
A prisoner filed a motion for post-conviction relief alleging ineffective assistance of counsel regarding a plea agreement that included a gain time provision. The circuit court denied the motion as untimely, calculating the two-year filing deadline from the date the judgment became final. The issue is whether the deadline begins when the judgment becomes final or when the Department of Corrections informs the prisoner of a gain time forfeiture. The court applies the rule that the DOC’s determination of gain time constitutes newly discovered information, making the date of that notification the triggering event for the filing period. Because the motion was filed within two years of the DOC’s notification, the court reverses the lower court’s order and remands for consideration of the motion.
At page 598 Determining timeliness of motion based on notice of gain time forfeiture5 citing cases“that the triggering event for the two-year period in which to file a rule 3.850 motion is not the date of the judgment in the criminal proceeding in which the prisoner pleaded, but the date on which the department of corrections informed the prisoner of the gain time forfeiture and that the doc det…”
- Chandler v. State, 1 So. 3d 284 (Fla. 2d DCA 2009).published See, e.g., Douglas v. State, 977 So.2d 776, 777-78 (Fla. 2d DCA 2008); Boykins v. State, 976 So.2d 700, 700-01 (Fla. 2d DCA 2008); Beasley v. State, 958 So.2d 1086, 1087-88 (Fla. 2d DCA 2007); Galindez v. State, 909 So.2d 597, 598 (Fla. 2d…
- Singleton v. State, 981 So. 2d 1259 (Fla. 2d DCA 2008).published See Boykins v. State, 976 So.2d 700, 700-01 (Fla. 2d DCA 2008); Beasley v. State, 958 So.2d 1086, 1087-88 (Fla. 2d DCA 2007); Galindez v. State, 909 So.2d 597, 598 (Fla. 2d DCA 2005); Hall v. State, 891 So.2d 1066, 1067 (Fla. 2d DCA 2004);…
- Douglas v. State, 977 So. 2d 776 (Fla. 2d DCA 2008).published The court noted that Douglas had previously been released on conditional release and then returned to prison and that "[t]here is no accounting for the more than six-year delay." In Galindez v. State, 909 So.2d 597, 598 (Fla. 2d DCA 2005),…
- Boykins v. State, 976 So. 2d 700 (Fla. 2d DCA 2008).publishedId. at 1087-88 (quoting Galindez v. State, 909 So.2d 597, 598 (Fla. 2d DCA 2005)); see also Hall v. State, 891 So.2d 1066 (Fla. 2d DCA 2004); Spradley v. State, 868 So.2d 632 (Fla. 2d DCA 2004).
- Beasley v. State, 958 So. 2d 1086 (Fla. 2d DCA 2007).published(reviewing prisoner's claim of ineffective assistance of counsel due to counsel's failure to adequately inform him that the DOC could forfeit his earned gain time based on a violation of probation)
v.
STATE of Florida, Appellee.
PER CURIAM.
Heriberto Galindez seeks review of an order denying as untimely his motion under Florida Rule of Criminal Procedure 3.850. In the motion, Galindez claims he received ineffective assistance of counsel with respect to a plea resulting in a judgment dated November 16, 2001. The circuit court ruled that the motion was untimely[*598] because it was not filed within two years from December 15, 2001, the date the judgment became final. We reverse.
In the motion, Galindez alleges that his counsel failed to inform him that despite inclusion in the judgment of a provision concerning gain time, the Department of Corrections (DOC) could forfeit gain time based on his violation of probation. See § 944.28, Fla. Stat. (2004). Galindez attached to his motion his request to DOC for a computation of his sentence including gain time and the DOC's response, which was dated April 23, 2002. The order of the circuit court denying Galindez's rule 3.850 motion states that the motion was filed on April 5, 2004.
Under virtually identical circumstances, this court has twice held that the triggering event for the two-year period in which to file a rule 3.850 motion is not the date of the judgment in the criminal proceeding in which the prisoner pleaded, but the date on which the DOC informed the prisoner of the gain time forfeiture and that the DOC determination of gain time constituted newly discovered information within the meaning of rule 3.850(b)(1). Hall v. State, 891 So.2d 1066 (Fla. 2d DCA 2004); Spradley v. State, 868 So.2d 632 (Fla. 2d DCA 2004). Galindez's motion was filed on April 5, 2004, within two years of April 23, 2002, the undisputed date that DOC informed him of his gain time forfeiture. The motion is timely.
Accordingly, we reverse the order of the circuit court and remand the matter for consideration of Galindez's motion.
Reversed and remanded.
FULMER, C.J., and KELLY and VILLANTI, JJ., Concur.