Himes v. State

District Court of Appeal of Florida

Himes v. State

53 So. 3d 1218, 2011 Fla. App. LEXIS 1583, 2011 WL 479985

CourtDistrict Court of Appeal of Florida

DecidedFebruary 11, 2011

DocketNo. 1D10-3769

StatusPublished

This text of 53 So. 3d 1218 (Himes v. State) 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

Himes v. State, 53 So. 3d 1218, 2011 Fla. App. LEXIS 1583, 2011 WL 479985 (Fla. Ct. App. 2011).

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Opinion

PER CURIAM.

The appellant has appealed an order denying his first Florida Rule of Criminal Procedure 3.850 motion without consideration of his timely-filed amended motion. The appellant argued in his motion for rehearing that the amended motion had been timely filed and therefore the trial court should have considered and ruled on it in its final order. However, the trial court denied the motion for rehearing and did not rule on the amended motion. A defendant may amend a timely filed rule 3.850 motion as long as the amended motion is also within the two-year rule 3.850 filing window. See Harris v. State, 826 So.2d 340 (Fla. 2d DCA 2002); Beard v. State, 827 So.2d 1021 (Fla. 2d DCA 2002); Bradford v. State, 701 So.2d 899, 900 (Fla. 4th DCA 1997). The amended motion was filed within the two-year rule 3.850 filing window. The state has conceded that the trial court should have considered and ruled on the appellant’s amended motion in its order denying relief of the original postconviction motion. We therefore reverse and remand for the lower court to consider and rule on the appellant’s second, amended motion.

REVERSED AND REMANDED.

BENTON, C.J., DAVIS, and THOMAS, JJ., concur.

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PER CURIAM.

The appellant has appealed an order denying his first Florida Rule of Criminal Procedure 3.850 motion without consideration of his timely-filed amended motion. The appellant argued in his motion for rehearing that the amended motion had been timely filed and therefore the trial court should have considered and ruled on it in its final order. However, the trial court denied the motion for rehearing and did not rule on the amended motion. A defendant may amend a timely filed rule 3.850 motion as long as the amended motion is also within the two-year rule 3.850 filing window. See Harris v. State, 826 So.2d 340 (Fla. 2d DCA 2002); Beard v. State, 827 So.2d 1021 (Fla. 2d DCA 2002); Bradford v. State, 701 So.2d 899, 900 (Fla. 4th DCA 1997). The amended motion was filed within the two-year rule 3.850 filing window. The state has conceded that the trial court should have considered and ruled on the appellant’s amended motion in its order denying relief of the original postconviction motion. We therefore reverse and remand for the lower court to consider and rule on the appellant’s second, amended motion.

REVERSED AND REMANDED.

BENTON, C.J., DAVIS, and THOMAS, JJ., concur.

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Bluebook (online)

53 So. 3d 1218, 2011 Fla. App. LEXIS 1583, 2011 WL 479985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/himes-v-state-fladistctapp-2011.

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