Brown v. Roberts

District Court of Appeal of Florida

Brown v. Roberts

581 So. 2d 978, 1991 Fla. App. LEXIS 5873, 1991 WL 109693

CourtDistrict Court of Appeal of Florida

DecidedJune 21, 1991

DocketNo. 91-677

StatusPublished

This text of 581 So. 2d 978 (Brown v. Roberts) 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.

Bluebook

Brown v. Roberts, 581 So. 2d 978, 1991 Fla. App. LEXIS 5873, 1991 WL 109693 (Fla. Ct. App. 1991).

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Opinion

PER CURIAM.

Petitioner seeks a writ of mandamus to compel the trial court to rule on two motions for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We grant the petition.

Petitioner filed two motions for post conviction relief. The trial court entered an order “refus[ing] to receive such motions because the motions were filed more than two years after the judgment and sentence became final....” Petitioner argues that while the trial judge may deny his motions, the court cannot refuse to act upon them, but must issue a formal order. McBride v. State, 443 So.2d 416 (Fla. 4th DCA 1984). We agree. Rule 3.850 states:

if the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief, the motion shall be denied without a hearing.

We read this language to require the trial court to accept the motion as filed and deny relief. The court cannot refuse to accept the motion for filing. We decline to accept the respondent’s suggestion that we treat the petition as an appeal from summary denial. There has been no final order yet entered in this case and this court is without jurisdiction to entertain an appeal. The petition for writ of mandamus is granted with instructions to the trial court to enter a proper order pursuant to Rule 3.850.

WRIT ISSUED.

SHIVERS, C.J., and WIGGINTON and NIMMONS, JJ., concur.

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PER CURIAM.

Petitioner seeks a writ of mandamus to compel the trial court to rule on two motions for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We grant the petition.

Petitioner filed two motions for post conviction relief. The trial court entered an order “refus[ing] to receive such motions because the motions were filed more than two years after the judgment and sentence became final....” Petitioner argues that while the trial judge may deny his motions, the court cannot refuse to act upon them, but must issue a formal order. McBride v. State, 443 So.2d 416 (Fla. 4th DCA 1984). We agree. Rule 3.850 states:

if the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief, the motion shall be denied without a hearing.

We read this language to require the trial court to accept the motion as filed and deny relief. The court cannot refuse to accept the motion for filing. We decline to accept the respondent’s suggestion that we treat the petition as an appeal from summary denial. There has been no final order yet entered in this case and this court is without jurisdiction to entertain an appeal. The petition for writ of mandamus is granted with instructions to the trial court to enter a proper order pursuant to Rule 3.850.

WRIT ISSUED.

SHIVERS, C.J., and WIGGINTON and NIMMONS, JJ., concur.

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Bluebook (online)

581 So. 2d 978, 1991 Fla. App. LEXIS 5873, 1991 WL 109693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-roberts-fladistctapp-1991.

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