Rivas v. State

District Court of Appeal of Florida

Rivas v. State

906 So. 2d 1193, 2005 Fla. App. LEXIS 11071, 2005 WL 1681403

CourtDistrict Court of Appeal of Florida

DecidedJuly 20, 2005

DocketNo. 3D05-274

StatusPublished

Cited by2 cases

This text of 906 So. 2d 1193 (Rivas 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

Rivas v. State, 906 So. 2d 1193, 2005 Fla. App. LEXIS 11071, 2005 WL 1681403 (Fla. Ct. App. 2005).

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Opinion

SHEPHERD, J.

Defendant appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion, which the trial court denied as successive. We reverse.

A review of the motions previously filed by defendant demonstrates that the June 4, 2004 Rule 3.850 motion under consideration was timely and not successive.¹ Defendant filed several Rule 3.800 motions attacking his sentence, and filed a motion entitled “Motion for Post Conviction Re-liefTixtension of Time” in which he merely requested an extension of time to file a Rule 3.850 motion. The trial court denied this motion as successive. In the June 4 motion, entitled “Motion for Rehearing and Clarification Pursuant to Rule 3.850(g),” defendant raised several ineffective assistance of trial counsel claims. Because the previous motions either sought relief pursuant to Rule 3.800 or an extension of time to file a Rule 3.850 motion, the court erred in denying the June 4 motion as successive. See Ramirez v. State, 822 So.2d 593, 594 (Fla. 2d DCA 2002). Accordingly, we reverse and remand for consideration of the June 4 motion.

Reversed and remanded.

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SHEPHERD, J.

Defendant appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion, which the trial court denied as successive. We reverse.

A review of the motions previously filed by defendant demonstrates that the June 4, 2004 Rule 3.850 motion under consideration was timely and not successive.¹ Defendant filed several Rule 3.800 motions attacking his sentence, and filed a motion entitled “Motion for Post Conviction Re-liefTixtension of Time” in which he merely requested an extension of time to file a Rule 3.850 motion. The trial court denied this motion as successive. In the June 4 motion, entitled “Motion for Rehearing and Clarification Pursuant to Rule 3.850(g),” defendant raised several ineffective assistance of trial counsel claims. Because the previous motions either sought relief pursuant to Rule 3.800 or an extension of time to file a Rule 3.850 motion, the court erred in denying the June 4 motion as successive. See Ramirez v. State, 822 So.2d 593, 594 (Fla. 2d DCA 2002). Accordingly, we reverse and remand for consideration of the June 4 motion.

Reversed and remanded.

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906 So. 2d 1193, 2005 Fla. App. LEXIS 11071, 2005 WL 1681403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivas-v-state-fladistctapp-2005.

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