Ortiz v. State
| Decision Date | 25 March 2009 |
| Docket Number | No. 4D08-4487.,4D08-4487. |
| Citation | 4 So.3d 794 |
| Parties | Jose Perez ORTIZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jose Perez Ortiz, Carrabelle, pro se.
Bill McCollum, Attorney General, Tallahassee and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellant.
Jose Ortiz appeals an order denying his rule 3.850 motion as untimely filed. We agree that the motion was timely filed and reverse and remand for the trial court to consider the motion on the merits.
On direct appeal, this court issued an opinion affirming appellant's convictions. Ortiz v. State, 869 So.2d 1278 (Fla. 4th DCA 2004). Thereafter, appellant timely sought discretionary review in the Florida Supreme Court. The supreme court stayed the proceedings pending review of a certified question in McLean v. State, 854 So.2d 796 (Fla. 2d DCA 2003). After deciding McLean v. State, 934 So.2d 1248 (Fla.2006), on October 3, 2006, the supreme court denied review in appellant's case. Ortiz v. State, 941 So.2d 368 (Fla. 2006). Appellant filed his rule 3.850 motion on February 5, 2007.
Ortiz is correct that the time for filing this rule 3.850 motion was tolled until the direct review proceedings were concluded. See Mullins v. State, 974 So.2d 1135 (Fla. 3d DCA 2008); Perkins v. State, 845 So.2d 273, 274 (Fla. 2d DCA 2003); Gallo v. State, 571 So.2d 78 (Fla. 4th DCA 1990). On appeal, the state does not dispute that the motion was timely filed.
Accordingly, we reverse the circuit court's order and remand this case for the court to consider the 3.850 motion on the merits.
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