Moncer v. State

666 So. 2d 558, 1995 Fla. App. LEXIS 12896, 1995 WL 739714

Opinion

PER CURIAM.

Michael M. Moncer appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion on the ground that it was untimely filed. Although the copy of the motion before the circuit court was indeed filed untimely, our limited record contains two affidavits attesting to an earlier timely filing of the motion. If the contents of the affidavits are correct, Moncer’s motion was timely filed in accordance with the mailbox rule of Iiaag v. State, 591 So.2d 614 (Fla.1992).

Because the record conflicts as to whether the motion was timely filed, we reverse the trial court’s denial of Moncer’s motion on that basis. We remand with directions to the trial court to conduct an evidentiary hearing to determine whether Moncer originally mailed the motion in the timely fashion as he attests. If the sworn allegations are true, Moncer would be entitled to the consideration of his postconviction relief motion on its merits. On the other hand, if the sworn allegations are proven to be false, they would seem to present a proper basis for a charge of perjury in an official proceeding. § 837.02, Fla.Stat. (1993).

Reversed and remanded.

BLUE, A.C.J., and FULMER and WHATLEY, JJ., concur.