Ortiz v. State

652 So. 2d 1269, 1995 Fla. App. LEXIS 3644, 1995 WL 170136

Opinion

PER CURIAM.

The appellant, Andres H. Ortiz, challenges the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We find that the trial court erred by denying the appellant’s motion on the ground that it was untimely, and, accordingly, reverse and remand for consideration on the merits.

The only record presented to this court indicates that the appellant filed a timely motion for postconviction relief. The trial court dismissed that motion without prejudice because it was unsworn. According to the appellant’s present sworn motion, he did not receive a copy of the court’s order until he inquired of the clerk much later. Once the appellant received a copy of the order dismissing his motion, he promptly cured the defect and refiled the motion. Under the circumstances of this case, the appellant has the right to have his motion considered on the merits. See Miller v. State, 617 So.2d 332 (Fla. 2d DCA 1993).

Reversed and remanded.

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