Harper v. State

903 So. 2d 320, 2005 Fla. App. LEXIS 8873, 2005 WL 1364556

Opinion

PER CURIAM.

Craig Harper appeals an order granting in part, and denying in part a motion filed pursuant to Rules 3.800 and 3.850, Florida Rules of Criminal Procedure. We affirm the order in all respects but one. The trial court considered Ground “D” only as a motion for mitigation of sentence under Rule 3.800(c), and denied it as untimely. Although it is unquestionably ambiguous, we believe that Ground “D” should also be considered to be seeking relief under Rule 3.850, in which case it would be timely. Accordingly, we remand in order to allow the trial court to determine whether Ground “D” states a basis for post-conviction relief under Rule 3.850. See Forbert v. State, 437 So.2d 1079 (Fla.1983); Rogers v. State, 864 So.2d 521 (Fla. 5th DCA 2004). See also Handley v. State, 890 So.2d 529 (Fla. 2d DCA 2005).

AFFIRMED in part, REVERSED in part, and REMANDED.

SAWAYA, C.J., THOMPSON and MONACO, JJ., concur.