Myers v. State, 88-2122
| Decision Date | 02 March 1989 |
| Docket Number | No. 88-2122,88-2122 |
| Citation | 14 Fla. L. Weekly 578,539 So.2d 525 |
| Parties | 14 Fla. L. Weekly 578 Paul MYERS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Paul Meyers, pro se.
No appearance for the State.
Appellant appeals from the summary denial of his 3.850 motion. In the appealed order, the court recited that "the motion and files and records in this case conclusively show that the defendant is entitled to no relief for numerous reasons, but specifically finding that the motion was filed more than two years after the judgment and sentence became final." We reverse.
First, the motion was not untimely. Fla.R.Cr.P. 3.850 provides in pertinent part:
A motion to vacate a sentence which 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 two years after the judgment and sentence become final [with two exceptions not relevant here]. Any person whose judgment and sentence became final prior to January 1, 1985, shall have until January 1, 1987, to file a motion in accordance with this rule. (e.s.)
The judgment and sentence becomes final when direct review proceedings are concluded and jurisdiction to entertain the motion for postconviction relief returns to the trial court. Johnson v. State, 508 So.2d 779 (Fla. 1st DCA 1987). It is clear from the records before us that appellant's motion was filed well within the two-year period after the judgment and sentence became final subsequent to the defendant's direct appeal in Myers v. State, 499 So.2d 895 (Fla. 1st DCA 1987). 1
With the elimination of that basis for the trial court's summary denial, we are left with the court's reliance upon unspecified "files and records," copies of none of which were attached to the order. Such is insufficient as a basis for summary denial.
Moreover, we cannot say that the motion is facially insufficient. Indeed, our examination of the motion 2 reveals that it adequately alleges facts supporting the following grounds for relief under 3.850: (1) that the defendant was incompetent to stand trial; and (2) that the defendant was denied effective assistance of counsel in that counsel failed to adequately investigate and raise the defense of insanity. See Price v. State, 487 So.2d 34 (Fla. 1st DCA 1986). The remaining ground asserted by the defendant, that "the trial court erred in allowing insufficient of [sic] evidence for [sic] an attempted burglary to go...
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