A judgment becomes final for postconviction purposes when direct appeal proceedings conclude, and a motion to correct an illegal sentence does not toll the statutory filing deadline.
The defendant, convicted of nine offenses in 2001, filed a motion for postconviction relief to withdraw his plea in 2005, more than two years after his direct appeal mandate issued. The defendant argued the motion was timely because it followed a resentencing on one count resulting from a motion to correct an illegal sentence. The court addresses whether such a resentencing tolls the two-year filing deadline for postconviction motions. The court applies the rule that a judgment becomes final for postconviction purposes when direct review concludes and that the two-year limitation is not tolled by collateral proceedings or corrections to illegal sentences. The court reverses the summary denial and remands with instructions to dismiss the motion as untimely, without prejudice to filing a belated motion under statutory exceptions.
At page 630 Determining finality of judgment for rule 3.850 timeliness4 citing cases[Petitioner] claimed that his rule 3.850 motion was timely because it was filed only thirty days after a resentencing on count six that occurred on August 29, 2005. However, that resentencing was not the result of his direct appeal proceedings but was the result of a successful motion to correct i…
- Streeter v. Sec'y, Dep't of Corr. (Polk Cnty.), No. 8:20-cv-02273 (M.D. Fla. Sept. 12, 2023).([Petitioner] claimed that his rule 3.850 motion was timely because it was filed only thirty days after a resentencing on count six that occurred on August 29, 2005. However, that resentencing was not the result of his…)
- Ednol a. Hanna, I I I v. State of Florida, 327 So. 3d 464 (Fla. 2d DCA 2021).publishedSee, e.g., Gillis v. State, 32 So. 3d 681, 682 (Fla. 2d DCA 2010) (holding that resentencing from a successful rule 3.800 motion did not toll the time for a rule 3.850 motion attacking the defendant's underlying convictions); O'Neill v. St…
- Gillis v. State, 32 So. 3d 681 (Fla. 2d DCA 2010).publishedP. 3.850(b); O’Neill v. State, 6 So.3d 630, 630 (Fla. 2d DCA 2009); Marrero v. State, 967 So.2d 934, 936 (Fla. 2d DCA 2007).
- Doby v. State, 25 So. 3d 598 (Fla. 2d DCA 2009).published(holding that a judgment and sentence becomes final when direct appeal proceedings are concluded)
Other citing cases
- Fudge v. State, 116 So. 3d 597 (Fla. 3d DCA 2013).published
v.
STATE of Florida, Appellee
James O’Neill appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the postcon-viction court’s order and remand with instructions to dismiss O’Neill’s motion as untimely.
In 2001, O’Neill was convicted of and sentenced on nine offenses pursuant to a negotiated plea agreement. He appealed, and this court reversed and remanded for the trial court to strike minimum mandatory terms from his sentences on counts seven and nine. O’Neill v. State, 841 So.2d 629 (Fla. 2d DCA 2003). The mandate in his direct appeal was issued on April 28, 2003. O’Neill did not file his rule 3.850 motion seeking to withdraw his plea until September 28, 2005, more than two years after his direct review proceedings were concluded. See Fla. R.Crim. P. 3.850(b) (providing that no motion shall be filed more than two years after the judgment and sentence become final in a non-capital case); Valdes v. State, 904 So.2d 515 (Fla. 3d DCA 2005) (holding that a judgment and sentence are not final for purposes of rule 3.850 until direct review proceedings are concluded).
O’Neill claimed that his rule 3.850 motion was timely because it was filed only thirty days after a resentencing on count six that occurred on August 29, 2005. However, that resentencing was not the result of his direct appeal proceedings but was the result of a successful motion to correct illegal sentence, which did not affect the timeliness of his rule 3.850 motion. See Joseph v. State, 835 So.2d 1221, 1222 n. 3 (Fla. 5th DCA 2003) (“The two-year limitation is not tolled by other collateral proceedings filed in the trial court, even if a corrected sentence is entered. An illegal sentence may be corrected at any time, and it would make no sense to allow a judgment to be attacked many years after the expiration of the two-year deadline simply because a sentence was corrected pursuant to a rule 3.800(a) motion.”); see also Pierce v. State, 875 So.2d 726, 727 n. 1 (Fla. 4th DCA 2004) (noting the difference between cases “involvefing] re-sentencing on direct appeal” and cases such as Joseph [*631] involving “re-sentencing following a post-conviction motion”).
Accordingly, we reverse the order on appeal. On remand, the postconviction court shall dismiss O’Neill’s motion without prejudice to any right he may have to file a belated motion for postconviction relief asserting relief under the exceptions listed in rule 3.850(b), about which we express no opinion. We note that if O’Neill refiles his motion and is successfully able to assert an exception to the two-year requirement, the postconvietion court should consider his claims in light of Spera v. State, 971 So.2d 754 (Fla.2007), of which the postconviction court did not have the benefit at the time it initially denied three of O’Neill’s claims as facially insufficient.
Reversed and remanded.
WHATLEY and SILBERMAN, JJ., Concur.