Boyd v. State, 4D01-1737.
| Decision Date | 24 October 2001 |
| Docket Number | No. 4D01-1737.,4D01-1737. |
| Citation | 801 So.2d 116 |
| Parties | Mahlard K. BOYD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Mahlard K. Boyd, Miami, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
Appellant seeks review of an order which denied his rule 3.850 motion for post-conviction relief on the ground that it was untimely. Appellant's motion was due on April 13, 2000, and prior to that date, on April 10, appellant filed a motion for extension of time to file the motion. In his motion for extension he explained that on March 29 he had been transferred to another prison, but that his legal papers remained at his former prison where a law clerk had been assisting him, and he had not yet been able to obtain them. He filed his post-conviction motion on May 15, 2000. We reverse.
Rule 3.050 provides in part:
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for good cause shown may, at any time, in its discretion (1) with or without notice, order the period enlarged if a request therefor is made before the expiration of the period originally prescribed.
In Giles v. State, 773 So.2d 1167 (Fla. 2d DCA 2000), the court affirmed an order denying a motion for extension stating that it found no authority in the rules for granting an extension. We disagree with that decision and conclude that extensions for post-conviction relief motions are permissible. We find support for our decision in Ballester v. State, 781 So.2d 503 (Fla. 3d DCA 2001), in which it was held that a federal prisoner deprived of access to his Florida legal documents was not precluded from filing a late rule 3.850 motion directed to his Florida conviction. See also Jennings v. State, 583 So.2d 316 (Fla.1991)(extending the time for filing a rule 3.850 motion beyond the two year limitation in order to file a Brady claim).
In Rozier v. State, 603 So.2d 120 (Fla. 5th DCA 1992) a prisoner filed a motion to supplement his timely rule 3.850 motion with an affidavit of a witness stating she had falsely incriminated him. The motion to supplement was filed after the expiration of the two year period, and the trial court denied the motion to supplement because it was not timely. In reversing the court first noted that post-conviction proceedings are technically civil proceedings. Allen v. Butterworth, 756 So.2d 52 (Fla. 2000); State v. White, 470 So.2d 1377 (Fla. 1985). The court then applied civil rule 1.190(e), which provides:
At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.
We cite Rozier because we see some similarity between allowing an amendment to a 3.850 motion after the time expires, raising a new substantive issue, and extending the time beyond the two year period for the filing of the entire motion. Where there has been no judicial action nor any prejudice to the state, we see no good reason for inflexible adherence to the two year limit. Although two years should normally be ample, movants are, we must remember, usually incarcerated and without counsel.1
We accordingly reverse and remand for further proceedings, which may include an inquiry into whether the facts alleged in the motion for extension are true. We certify conflict with Giles.2
FARMER, J., concurs specially with opinion.
I concur in Judge Klein's conclusion that rule 3.050 may be used to extend the 2year deadline for filing motions seeking post-conviction relief under rule 3.850. In Allen v. Butterworth, 756 So.2d 52 (Fla. 2000), the court made clear that the Legislature has no power to establish procedural deadlines affecting post-conviction relief. As the court held:
756 So.2d at 62. If not for Allen I would conclude that the deadline set forth in section 924.051(6) is a statute of limitations on...
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State v. Boyd
...FL, for Petitioner. R. Mitchell Prugh of Middleton & Prugh, P.A., Melrose, FL, for Respondent. CANTERO, J. We review Boyd v. State, 801 So.2d 116 (Fla. 4th DCA 2001), which certified conflict with Giles v. State, 773 So.2d 1167 (Fla. 2d DCA 2000). We have jurisdiction. See art. V, § 3(b)(4)......