Mills v. State, 4D04-4314.

• Decision Date: 27 April 2005
• Docket Number: No. 4D04-4314.,4D04-4314.
• Citation: 901 So.2d 939
• Parties: Brian I. MILLS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

901 So.2d 939

Brian I. MILLS, Appellant, v. STATE of Florida, Appellee.

No. 4D04-4314.

District Court of Appeal of Florida, Fourth District.

April 27, 2005.

Rehearing Denied June 8, 2005.

Brian I. Mills, Indiantown, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

We reverse the trial court's order summarily denying the "rule 3.850(h)" motion filed pursuant to Steele v. Kehoe, 747 So.2d 931 (Fla.1999), by Brian I. Mills, which should have been treated as a petition for writ of habeas corpus. Id. at 934.

We find Mills alleged a legally sufficient claim requesting permission to file a belated motion for postconviction relief. We direct the trial court on remand to conduct an evidentiary hearing to determine whether Mills, through his mother and family friend, retained counsel to file a timely rule 3.850 motion, and whether counsel failed timely to file such a motion. See Medrano v. State, 748 So.2d 986 (Fla.1999); Steele; Krasnick v. State, 780 So.2d 1045 (Fla. 4th DCA 2001). Further, the state may present any evidence that would support their claim of laches.

POLEN, GROSS and HAZOURI, JJ., concur.