Kleckley v. State, 4D03-2759.

• Citation: 857 So.2d 1009
• Decision Date: 05 November 2003
• Docket Number: No. 4D03-2759.,4D03-2759.
• Parties: Robert KLECKLEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

857 So.2d 1009

Robert KLECKLEY, Appellant, v. STATE of Florida, Appellee.

No. 4D03-2759.

District Court of Appeal of Florida, Fourth District.

November 5, 2003.

Robert Kleckley, Bonifay, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L'Italien, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Robert Kleckley seeks review of an order denying his motion for postconviction relief as untimely. We reverse and remand for further review.

By opinion dated May 1, 2002, this court affirmed the trial court's denial of Kleckley's motion for postconviction relief due to his failure to comply with the requirements of Florida Rule of Criminal Procedure 3.987 when filing the motion. See Kleckley v. State, 815 So.2d 737 (Fla. 4th DCA 2002)

. The affirmance was without prejudice to him re-filing with the trial court, within thirty days after the date of the opinion, his motion for postconviction relief in compliance with the rule. See id. at 737 (citing Lawson v. State, 754 So.2d 86 (Fla. 4th DCA 2000)).

Kleckley claims to have timely filed the motion that was not received by the lower court. As there exists a good faith factual dispute regarding the date Kleckley filed the renewed motion, we remand for the trial court to conduct an evidentiary hearing on the issue of timeliness. See Jones v. State, 854 So.2d 773, 774 (Fla. 2d DCA 2003)

; Jones v. State, 785 So.2d 561, 561 (Fla. 2d DCA 2001). Should the state opt to withdraw its objection on timeliness, the trial court should consider the motion on the merits. See Thompson v. State, 761 So.2d 324, 325 (Fla.2000).

FARMER, C.J., GUNTHER and WARNER, JJ., concur.