Antonio Antwan Smith v. State of Florida

District Court of Appeal of Florida

Antonio Antwan Smith v. State of Florida

183 So. 3d 466, 2016 Fla. App. LEXIS 725, 2016 WL 231408

CourtDistrict Court of Appeal of Florida

DecidedJanuary 20, 2016

Docket4D15-1860

StatusPublished

This text of 183 So. 3d 466 (Antonio Antwan Smith v. State of Florida) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Antonio Antwan Smith v. State of Florida, 183 So. 3d 466, 2016 Fla. App. LEXIS 725, 2016 WL 231408 (Fla. Ct. App. 2016).

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Opinion

PER CURIAM.

Antonio Smith appeals the summary denial of his rule 3.850 motion for post-conviction relief. The trial court denied the motion on the merits, after giving Smith several opportunities to amend his claims. We find that the trial court should have' dismissed Smith’s initial motion as untimely filed.

In 2008, Smith was convicted of leaving the scene of an accident with vehicular homicide and sentenced to twenty-five years in prison. This court affirmed the conviction and sentence on direct appeal. Smith v. State, 15 So.3d 899 (Fla. 4th DCA 2009). The mandate issued on September 4, 2009. Smith subsequently filed a petition for all writs in the Florida Supreme Court, seeking to compel this court to rule on his untimely motion for rehearing. The supreme court treated Smith’s petition as seeking a writ of mandamus and denied it.

Because Smith’s petition in the Florida Supreme Court did not seek direct review of this court’s decision, his conviction and sentence became final for the purpose of rule 3.850 when the mandate issued on September 4, 2009, See Marrero v. State, 967 So.2d 934, 936 (Fla. 2d DCA 2007); Perkins v. State, 845 So.2d 273, 274 (Fla. 2d DCA 2003); see also Jones v. State, 922 So.2d 1088, 1089-90 (Fla. 4th DCA 2006) (holding that a petition for belated appeal does not toll finality because it does not reach the merits of the appeal).

Smith’s initial rule 3.850 .motion was filed more than two years later, on November 15, 20,11, and did not allege any of the exceptions provided in the rule. See Fla. R. Crim. P. 3.850(b). The trial court should have dismissed it as untimely filed. Accordingly, we affirm.

Affirmed.

STEVENSON, GROSS and TAYLOR, JJ., concur.

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PER CURIAM.

Antonio Smith appeals the summary denial of his rule 3.850 motion for post-conviction relief. The trial court denied the motion on the merits, after giving Smith several opportunities to amend his claims. We find that the trial court should have' dismissed Smith’s initial motion as untimely filed.

In 2008, Smith was convicted of leaving the scene of an accident with vehicular homicide and sentenced to twenty-five years in prison. This court affirmed the conviction and sentence on direct appeal. Smith v. State, 15 So.3d 899 (Fla. 4th DCA 2009). The mandate issued on September 4, 2009. Smith subsequently filed a petition for all writs in the Florida Supreme Court, seeking to compel this court to rule on his untimely motion for rehearing. The supreme court treated Smith’s petition as seeking a writ of mandamus and denied it.

Because Smith’s petition in the Florida Supreme Court did not seek direct review of this court’s decision, his conviction and sentence became final for the purpose of rule 3.850 when the mandate issued on September 4, 2009, See Marrero v. State, 967 So.2d 934, 936 (Fla. 2d DCA 2007); Perkins v. State, 845 So.2d 273, 274 (Fla. 2d DCA 2003); see also Jones v. State, 922 So.2d 1088, 1089-90 (Fla. 4th DCA 2006) (holding that a petition for belated appeal does not toll finality because it does not reach the merits of the appeal).

Smith’s initial rule 3.850 .motion was filed more than two years later, on November 15, 20,11, and did not allege any of the exceptions provided in the rule. See Fla. R. Crim. P. 3.850(b). The trial court should have dismissed it as untimely filed. Accordingly, we affirm.

Affirmed.

STEVENSON, GROSS and TAYLOR, JJ., concur.

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183 So. 3d 466, 2016 Fla. App. LEXIS 725, 2016 WL 231408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/antonio-antwan-smith-v-state-of-florida-fladistctapp-2016.

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