Brown v. State, No. 1D01-0633.

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM.
Citation802 So.2d 526
PartiesKeith Bernard BROWN, Appellant, v. STATE of Florida, Appellee.
Decision Date31 December 2001
Docket NumberNo. 1D01-0633.

802 So.2d 526

Keith Bernard BROWN, Appellant,
v.
STATE of Florida, Appellee

No. 1D01-0633.

District Court of Appeal of Florida, First District.

December 31, 2001.


802 So.2d 527
Appellant, pro se

Robert A. Butterworth, Attorney General; James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant challenges the trial court's order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

The appellant originally filed his motion for postconviction relief on January 22, 1999, and the trial court dismissed that motion as untimely. On appeal of that denial, we noted that the appellant's motion was not untimely because the two-year filing period provided for by Florida Rule of Criminal Procedure 3.850(b) had been tolled when the appellant timely appealed his new sentence. See Brown v. State, 756 So.2d 1084 (Fla. 1st DCA 2000). However, because the appellant had failed to state in his motion that he had previously filed a direct appeal as required by Florida Rule of Criminal Procedure 3.850(c)(2), we affirmed the trial court's denial of the appellant's motion without prejudice to the appellant to file a motion that complied with the requirements of that rule within thirty (30) days of the court's mandate. See id. The mandate issued on May 23, 2000.

The appellant timely refiled his rule 3.850 motion, this time complying with rule 3.850(c)(2). However, despite our opinion in Brown v. State, 756 So.2d 1084 (Fla. 1st DCA 2000), expressly authorizing the appellant to refile a compliant motion, the trial court again denied the appellant's motion as untimely.

The state argues that the direct appeal did not toll the time for filing a motion for postconviction relief pursuant to rule 3.850 because this Court dismissed the appeal on April 15, 1997, and because no mandate ever issued. However, "[a] judgment and sentence `become final' when direct review proceedings are concluded, and jurisdiction to entertain motions for post-conviction relief returns to the trial court." See Baggett v. State, 637 So.2d 303 (Fla. 1st DCA 1994), citing Ward v. Dugger, 508 So.2d 778 (Fla. 1st DCA 1987). Therefore, regardless of whether a mandate ever issued in the appellant's

direct appeal, the jurisdiction of the trial court to entertain a postconviction motion was removed when the appellant timely filed his notice of appeal, and did not return...

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3 practice notes
  • Brooks v. State, No. 1D00-2694.
    • United States
    • Court of Appeal of Florida (US)
    • May 7, 2002
    ...denial of the petition on account of a pleading deficiency ought not foreclose all possibility of relief. See generally Brown v. State, 802 So.2d 526, 527-28 (Fla. 1st DCA 2001); Hickey v. State, 763 So.2d 1213, 1214 (Fla. 1st DCA 2000) ("We believe movant should be given a short, specific ......
  • Kersey v. Kersey, No. 1D01-240.
    • United States
    • Court of Appeal of Florida (US)
    • December 31, 2001
    ...J., CONCURS WITH WRITTEN OPINION. KAHN, J., concurring. I completely agree with Judge Ervin's reasoning. Appellee's suggestion that the 802 So.2d 526 act of marriage removed the purported oral agreement from the operation of the Statute of Frauds would, if carried to its logical extent, nul......
  • Joseph v. State, No. 5D02-3891.
    • United States
    • Court of Appeal of Florida (US)
    • January 24, 2003
    ...began to run on the date this court dismissed Joseph's appeal even though no mandate was issued by the appellate court. Brown v. State, 802 So.2d 526 (Fla. 1st DCA As such, Joseph had until September 4, 2001, to file his rule 3.850 motion.1 Joseph's rule 3.850 motion was not filed until Sep......
3 cases
  • Brooks v. State, No. 1D00-2694.
    • United States
    • Court of Appeal of Florida (US)
    • May 7, 2002
    ...denial of the petition on account of a pleading deficiency ought not foreclose all possibility of relief. See generally Brown v. State, 802 So.2d 526, 527-28 (Fla. 1st DCA 2001); Hickey v. State, 763 So.2d 1213, 1214 (Fla. 1st DCA 2000) ("We believe movant should be given a short, specific ......
  • Kersey v. Kersey, No. 1D01-240.
    • United States
    • Court of Appeal of Florida (US)
    • December 31, 2001
    ...J., CONCURS WITH WRITTEN OPINION. KAHN, J., concurring. I completely agree with Judge Ervin's reasoning. Appellee's suggestion that the 802 So.2d 526 act of marriage removed the purported oral agreement from the operation of the Statute of Frauds would, if carried to its logical extent, nul......
  • Joseph v. State, No. 5D02-3891.
    • United States
    • Court of Appeal of Florida (US)
    • January 24, 2003
    ...began to run on the date this court dismissed Joseph's appeal even though no mandate was issued by the appellate court. Brown v. State, 802 So.2d 526 (Fla. 1st DCA As such, Joseph had until September 4, 2001, to file his rule 3.850 motion.1 Joseph's rule 3.850 motion was not filed until Sep......

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