Porter v. State, 2

• Decision Date: 30 July 1999
• Docket Number: 97-05308,2
• Parties: James Lee PORTER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

James Lee PORTER, Appellant, v. STATE of Florida, Appellee.

No. 97-05308.

District Court of Appeal of Florida Second District.

July 30, 1999.

Appeal from the Circuit Court for Lee County; Charles T. Carlton, (Senior) Judge.

Peter D. Ringsmuth of Law Office of Peter D. Ringsmuth, Fort Myers, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

FULMER, Judge.

The issue raised in this appeal is whether a motion for new trial was timely filed. We conclude that it was not, and therefore, affirm.

On August 28, 1997, a jury found James Lee Porter guilty of two counts of driving under the influence resulting in serious injury and one count of driving with a suspended license. On September 8, 1997, Porter's trial counsel prepared a motion for new trial and a motion for post-trial release. The two documents were delivered together directly to the trial judge's office by counsel's secretary and left there. The trial judge reviewed the motion for post-trial release, made a notation on it, and placed it in his out box to be delivered to the clerk's office. He also placed the motion for new trial in the out box. However, no notation was made on that document until it was delivered to and stamped by the clerk's office on September 10, 1997.

An evidentiary hearing was later held on the motion for new trial. The State did not raise an objection to the timeliness of the motion. The trial court granted the motion for new trial based on newly discovered evidence. Eventually, the State did raise the timeliness issue by filing a motion to vacate the new trial order based on lack of jurisdiction.¹ A successor judge presided over the hearing on the State's motion. At the hearing, the original trial judge testified that he received the motion for new trial in his office and stated that he thought, "someone must have mistaken me for the Clerk of the Court." Therefore, he placed the motion in his out box to go to the clerk's office for filing. After hearing additional testimony and argument of counsel, the successor judge ruled that the motion for new trial was not timely filed and entered an order denying the motion on that basis.

Florida Rule of Criminal Procedure 3.590(a) requires that a motion for new trial be made "within 10 days after the rendition of the verdict or the finding of the court." In this case, the operative date for compliance with the ten-day time limitation was...