Jackson v. State

127 So. 3d 836, 2013 WL 6182383, 2013 Fla. App. LEXIS 18884, 38 Fla. L. Weekly Fed. D 2505

Opinion

PER CURIAM.

Van Jackson appealed an order summarily denying his motion for reinstatement and leave to refile postconviction motion. This court treated the appeal as a petition for writ of mandamus to compel the trial court to allow him to refile his purported initial rule 3.850 motion, originally served on September 16, 1999, and to consider same on the merits.

This court appointed a commissioner to make findings of fact: first, as to whether Jackson actually turned over his purported initial rule 3.850 motion to prison officials for mailing on September 16, 1999; and second, whether he exercised due diligence thereafter in seeking a ruling on that motion within a reasonable time.

The commissioner heard testimony from Jackson, who presented a copy of the rule 3.850 motion which he had presented to a prison official for mailing on September 16, 1999, along with copies of other documents including a “motion for reinstatement and leave to refile” presented in 2012. The commissioner found Jackson to be credible, and determined he actually turned over his purported initial rule 3.850 motion to prison officials for mailing on September 16, 1999, and that he exercised due diligence thereafter in seeking a ruling on that motion. The commissioner recommended the case be sent back to the trial court to address Jackson’s initial motion on the merits.

No objections have been filed to the commissioner’s report. Accordingly, we grant the petition. The case is hereby returned to the trial court to address on the merits Jackson’s original rule 3.850 motion presented to prison officials for mailing on September 16,1999.

Petition for writ of mandamus is granted.

WARNER, GROSS and CIKLIN, JJ., concur.