Harris v. State, 5D16–375.
| Decision Date | 03 June 2016 |
| Docket Number | No. 5D16–375.,5D16–375. |
| Parties | Thomas HARRIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Thomas HARRIS, Appellant,
v.
STATE of Florida, Appellee.
No. 5D16–375.
District Court of Appeal of Florida, Fifth District.
June 3, 2016.
Tanya M. Dugree, of Tanya M. Dugree, P.A., Tampa, for Appellant.
No Appearance for Appellee.
EVANDER, J.
Thomas Harris appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We conclude that the trial court erred in finding one of Harris' claims to be untimely, but otherwise affirm.
After a jury trial, Harris was convicted in January 2010 of first-degree murder with a firearm and attempted robbery with a firearm. This Court affirmed his judgment and sentence in Harris v. State, 65 So.3d 143 (Fla. 5th DCA 2011), and the mandate was issued on August 1, 2011.
On July 10, 2013, Harris filed his amended motion for post-conviction relief, adding a newly discovered evidence claim. Specifically, Harris alleged that a previously unknown witness, Jason Vargas, had come forward after the trial and would testify that it was Carlos Patterson, not Harris, who was involved in the shooting and attempted robbery of the victim, and that Harris was not at the scene at the time of the shooting. Vargas' affidavit, dated August 26, 2010, was attached to the amended motion.
The trial court accepted the State's argument that the claim was untimely because the amended motion for post-conviction relief was filed more than two years after the date of Vargas' affidavit. We respectfully disagree with the trial court's conclusion.
Florida Rule of Criminal Procedure 3.850(b) provides:
(b) Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment
and sentence become final unless it alleges that...
(1) the facts on which the claim is predicated were unknown to the movant or the movant's
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