Rivet v. State, 92-2024

Decision Date28 May 1993
Docket NumberNo. 92-2024,92-2024
Parties18 Fla. L. Week. D1334 Steven A. RIVET, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Albert C. Penson of Hilton, Hilton, Kolk & Penson, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Barbara Arlene Fink, Asst. Atty. Gen., Daytona Beach, for appellee.

PETERSON, Judge.

Steven A. Rivet appeals an order striking his motion for post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. Rule 3.850(b), Florida Rules of Criminal Procedure, provides that no motion, other than a "motion to vacate a sentence that exceeds the limits provided by law ... shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final ..." except under limited circumstances. The issue raised is whether, after expiration of the two-year period, an appellant may file an amendment to the motion in order to cure a deficient supporting affidavit 1 when the original motion was filed timely. We reverse and remand for consideration of the 3.850 motion on its merits.

Rivet's original motion contained a certificate of service, but no oath. Rivet subsequently filed a deficient verification under oath in which he stated only that he was the defendant named in the motion and that he had read it and was familiar with its contents. 2 The state sought dismissal because of the deficiency and urged that any attempt to cure would be untimely since the two-year limitations period had expired subsequent to the filing of the deficient verification. Rivet then filed a properly executed affidavit, but the trial court struck the 3.850 motion based upon the deficiency in the verification. No mention of the last properly executed affidavit was made in the order of dismissal. We do not know whether this last filed affidavit was considered prior to the dismissal on July 20, 1992, but it was filed in the trial court on June 26, 1992, and was available for consideration prior to dismissal.

An untimely 3.850 motion cannot invoke the jurisdiction of the trial court in the absence of an exception to the limitations period. See, e.g., Johnson v. State, 536 So.2d 1009 (Fla.1988). However, a timely motion may be amended after expiration of the limitations period. In Rozier v. State, 603 So.2d 120 (Fla. 5th DCA 1992), the defendant filed a timely 3.850 motion but failed to include a crucial affidavit supporting the defendant's claim for relief. The defendant immediately moved to amend or supplement the motion, but the two-year limit for seeking relief had expired, and the trial court denied the motion. This court reversed, noting that, although rule 3.850 requires that a motion be filed within two years, there is no bar to filing relevant supplemental documentation within a reasonable time after expiration of the two...

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