Rozier v. State, 92-507

• Decision Date: 07 August 1992
• Docket Number: No. 92-507,92-507
• Citation: 603 So.2d 120
• Parties: Ronald ROZIER, Petitioner, v. STATE of Florida, Respondent. 603 So.2d 120, 17 Fla. L. Week. D1835
• Court: Florida District Court of Appeals

Page 120

603 So.2d 120

Ronald ROZIER, Petitioner, v. STATE of Florida, Respondent.

No. 92-507.

603 So.2d 120, 17 Fla. L. Week. D1835

District Court of Appeal of Florida Fifth District.

Aug. 7, 1992.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Rebecca R. Wall, Asst. Atty. Gen., Daytona Beach, for respondent.

W. SHARP, Judge.

Rozier petitions this court for a writ of common law certiorari to reverse an order of the trial court which denied his "Motion to Amend and/or Supplement Pleading" in his proceeding for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

The State first questions the petition's timeliness. Florida Rule of Appellate Procedure 9.100(c) requires that a petition for writ of certiorari be filed within thirty days of the rendition of the order to be reviewed. It appears that the order under consideration was rendered on February 6, 1992. Because the petition for certiorari was filed in this court on March 5, 1992, the filing was timely even without taking into account the petitioner's uncontradicted statement that he gave the petition to prison authorities on February 28, 1992.

The petition asserts the trial court departed from the essential requirements of law and left the petitioner without an adequate remedy on appeal when it refused to let him supplement his motion for post-conviction relief with Tonjia Welch's affidavit. Tonjia alleged in her affidavit that she falsely incriminated the petitioner before his trial, and had offered, without success, to testify at his trial that he was innocent. Tonjia swore she was terrorized into lying that Rozier killed Mary Baker. At the time she made that statement, the man who was terrorizing her had admitted to her that he had killed Baker.

According to the petition, the trial court refused to permit amendment of Rozier's motion for post-conviction relief because, even though his rule 3.850 motion was timely filed, it was filed without supporting documents, and the two-year time limit for filing such motions under Florida Rule of Criminal Procedure 3.850 expired before he attempted to supplement with the Welch affidavit. The motion to supplement was filed about four days after the rule 3.850 motion was filed, but after the two-year period ended. The petitioner blames prison authorities for his inability to file the affidavit along with the rule 3.850 motion, but his allegations lack specificity. The trial court's order does not express any reason for denying the motion to amend and/or supplement.

Before reaching the merits of the claim, we examine whether certiorari is an appropriate remedy. The order in question is not one of those non-final orders from which an appeal is permitted. Florida Rule of Appellate Procedure 9.130(a)(2) provides that review of non-final orders in criminal cases shall be as prescribed by rule 9.140. The appeals permitted a defendant by rule 9.140 do not include an order denying a motion to amend or supplement a motion for post-conviction relief. The Committee Notes (1977 Revision) to rule 9.140 state:

Subsection (b)(1) lists the only matters which may be appealed by a criminal defendant and is intended to supersede all other rules of practice and procedure. This rule has no effect on ... the availability of extraordinary writs otherwise within the jurisdiction of the court to grant ...

Applying the standard set out in Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098-1099 (Fla.1987), and Bowl America Florida, Inc. v. Schmidt, 386 So.2d 1203 (Fla. 5th DCA 1980), non-final orders like the one rendered in this case can be reviewed by certiorari if they depart from the essential requirements of law and thus will cause material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal. In this case, we think the trial court departed from the essential requirements of law by refusing (without stating any valid reason) to permit Rozier to supplement his timely-filed motion for post-conviction relief. We possess insufficient information to evaluate the import of the affidavit or its possible impact on the petitioner's case, but the affidavit is apparently relevant to issues raised in the rule 3.850 motion, and no reason has been shown for excluding it.

Amendments and supplements to rule 3.850 motions are commonplace. See, e.g., Wright v. State, 581 So.2d 882 (Fla.1991); Herring v. State, 580 So.2d 135 (Fla.1991). We believe that the principle expressed in Florida Rule of Civil Procedure 1.190(e) applies here:

At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.

The civil rule is pertinent because post-conviction collateral remedies such as those initiated under rule 3.850 are in the nature of independent collateral civil actions. See State v. White, 470 So.2d 1377, 1378 (Fla.1985). In State v. Lasley, 507 So.2d 711 (Fla. 2d DCA 1987), the court noted that, "[l]ike a habeas corpus proceeding an action under rule 3.850 is considered civil in nature and collateral to the criminal prosecution which resulted in the judgment of conviction, notwithstanding the inclusion of rule 3.850 within the criminal rules."

As for the...