Millette v. State

District Court of Appeal of Florida

Millette v. State

148 So. 3d 538, 2014 Fla. App. LEXIS 15854, 2014 WL 5072725

CourtDistrict Court of Appeal of Florida

DecidedOctober 10, 2014

Docket2D14-1440

StatusPublished

Cited by1 cases

This text of 148 So. 3d 538 (Millette 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

Millette v. State, 148 So. 3d 538, 2014 Fla. App. LEXIS 15854, 2014 WL 5072725 (Fla. Ct. App. 2014).

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Opinion

CASANUEVA, Judge.

Reynaldo Millette appeals the postcon-viction court order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.850(b)(3), wherein Mr. Millette sought leave to file a belated post-conviction motion on the basis that his privately retained counsel failed to timely file the motion. Because counsel did in fact file a timely motion for postconviction relief on August 22, 2012, and timely amended that motion on May 23, 2013, we affirm the postconviction court’s order. However, we note that the postconviction court erroneously dismissed the amended motion as untimely. See Rosier v. State, 144 So.3d 604 (Fla. 2d DCA 2014). It also appears Mr. Millette was not adequately informed of his right to seek appellate review of the postconviction court’s determination that the motion was untimely. Therefore, our affirmance is without prejudice to any right Mr. Millette may have to file a petition for belated appeal of the *539 postconviction court order rendered July 23, 2013, dismissing as untimely his previous rule 3.850 motion filed by counsel; he has until July 23, 2015, to file a timely petition. See Fla. R. App. P. 9.141(c). Mr. Millette should reference this opinion in his petition for belated appeal.

Affirmed.

SILBERMAN and BLACK, JJ., Concur.

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CASANUEVA, Judge.

Reynaldo Millette appeals the postcon-viction court order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.850(b)(3), wherein Mr. Millette sought leave to file a belated post-conviction motion on the basis that his privately retained counsel failed to timely file the motion. Because counsel did in fact file a timely motion for postconviction relief on August 22, 2012, and timely amended that motion on May 23, 2013, we affirm the postconviction court’s order. However, we note that the postconviction court erroneously dismissed the amended motion as untimely. See Rosier v. State, 144 So.3d 604 (Fla. 2d DCA 2014). It also appears Mr. Millette was not adequately informed of his right to seek appellate review of the postconviction court’s determination that the motion was untimely. Therefore, our affirmance is without prejudice to any right Mr. Millette may have to file a petition for belated appeal of the *539 postconviction court order rendered July 23, 2013, dismissing as untimely his previous rule 3.850 motion filed by counsel; he has until July 23, 2015, to file a timely petition. See Fla. R. App. P. 9.141(c). Mr. Millette should reference this opinion in his petition for belated appeal.

Affirmed.

SILBERMAN and BLACK, JJ., Concur.

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Bluebook (online)

148 So. 3d 538, 2014 Fla. App. LEXIS 15854, 2014 WL 5072725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millette-v-state-fladistctapp-2014.

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