Brower v. State

701 So. 2d 433, 1997 Fla. App. LEXIS 12774, 1997 WL 705655

Opinion

PER CURIAM.

Donald Brower, Sr. (Brower) challenges an order denying as untimely his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

Brower’s rule 3.850 motion was denied because it was filed more than two years after our decision in Brower’s direct appeal. We affirmed per curiam Brower’s direct appeal on May 10, 1994, and denied motion for rehearing on September 2, 1994. Brower v. State, 641 So.2d 1348 (Fla. 1st DCA 1994) (table). The mandate however issued on September 20, 1994. It is the date of the mandate, and not the date of our decision, that opens the two-year window for filing a rule 3.850 motion. Ward v. Dugger, 508 So.2d 778 (Fla. 1st DCA 1987). Brower’s rule 3.850 motion, filed on August 26, 1996, was within the two-year window, and thus was timely. We accordingly reverse the order below and remand this ease to the trial court to address Brower’s motion on the merits.

WEBSTER, MICKLE and LAWRENCE, JJ., concur.