Holley v. State

District Court of Appeal of Florida

Holley v. State

854 So. 2d 852, 2003 Fla. App. LEXIS 14548, 2003 WL 22213415

CourtDistrict Court of Appeal of Florida

DecidedSeptember 26, 2003

DocketNo. 5D03-1837

StatusPublished

This text of 854 So. 2d 852 (Holley 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.

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Holley v. State, 854 So. 2d 852, 2003 Fla. App. LEXIS 14548, 2003 WL 22213415 (Fla. Ct. App. 2003).

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Opinion

PER CURIAM.

Lawrence Holley appeals the summary denial of his Rule 3.850 motion pursuant to the Florida Rules of Criminal Procedure. The trial court denied the motion as untimely.

Holley was sentenced on September 27, 1999. He appealed, but his appeal was dismissed on procedural grounds. Later, Holley was able to obtain a belated appeal and have his original appeal, Case No. 5D99-3303, reinstated. This court affirmed per curiam and the mandate issued on October 1, 2001. The two-year limit for filing a Rule 3.850 motion does not begin to run until a district court mandate is issued when an appeal is taken and a per curiam affirmance is entered. See, e.g., Beaty v. State, 701 So.2d 856 (Fla.1997). Therefore, the trial court was mistaken when it calculated the two year period as ending on October 27, 2001, two-years and 30 days after Holley’s final judgment was entered.

We vacate the denial and remand for reconsideration on the merits of Holley’s motion.

Order VACATED; REMANDED.

PETERSON, GRIFFIN and PLEUS, JJ., concur.

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PER CURIAM.

Lawrence Holley appeals the summary denial of his Rule 3.850 motion pursuant to the Florida Rules of Criminal Procedure. The trial court denied the motion as untimely.

Holley was sentenced on September 27, 1999. He appealed, but his appeal was dismissed on procedural grounds. Later, Holley was able to obtain a belated appeal and have his original appeal, Case No. 5D99-3303, reinstated. This court affirmed per curiam and the mandate issued on October 1, 2001. The two-year limit for filing a Rule 3.850 motion does not begin to run until a district court mandate is issued when an appeal is taken and a per curiam affirmance is entered. See, e.g., Beaty v. State, 701 So.2d 856 (Fla.1997). Therefore, the trial court was mistaken when it calculated the two year period as ending on October 27, 2001, two-years and 30 days after Holley’s final judgment was entered.

We vacate the denial and remand for reconsideration on the merits of Holley’s motion.

Order VACATED; REMANDED.

PETERSON, GRIFFIN and PLEUS, JJ., concur.

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Bluebook (online)

854 So. 2d 852, 2003 Fla. App. LEXIS 14548, 2003 WL 22213415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holley-v-state-fladistctapp-2003.

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