Belizaire v. State ( 2017 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed July 19, 2017.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D17-546
    Lower Tribunal No. 07-17556
    ________________
    Marhlau Belizaire,
    Appellant,
    vs.
    The State of Florida,
    Appellee.
    An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
    Circuit Court for Miami-Dade County, Stacy D. Glick, Judge.
    Marhlau Belizaire, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LOGUE, SCALES, and LINDSEY, JJ.
    LOGUE, J.
    Appellant seeks review of the summary denial of his second petition for
    habeas corpus filed November 9, 2016, and his second motion to correct illegal
    sentence filed December 2, 2016. We affirm the denial of the second motion to
    correct illegal sentence for the reasons stated by the trial court. However, we
    reverse the denial of the petition for habeas corpus.
    The trial court properly treated the petition as a motion for postconviction
    relief under Florida Rule of Criminal Procedure 3.850. The court then held the
    motion was untimely because it was filed outside the two-year limit for filing such
    motions established by Rule 3.850(b). In doing so, the trial court miscalculated the
    dates. While this court affirmed Appellant’s judgment and sentence on October 8,
    2014, as indicated by the trial court, that ruling did not become final until the
    mandate was issued on November 3, 2014. Beaty v. State, 
    701 So. 2d 856
    , 857
    (Fla. 1997) (“[T]he two-year period for filing a motion for postconviction relief
    began to run upon the issuance of that court’s mandate.”). The Appellant’s motion
    filed on November 2, 2014, was therefore timely.
    The order under review mentions other grounds as bases for denial. We do
    not address the other grounds because the required portions of the record were not
    attached. See Fla. R. Crim. P. 3.850(f)(5). See also Juarez v. State, 
    215 So. 3d 89
    ,
    90 (Fla. 3d DCA 2016); Nottage v. State, 
    61 So. 3d 1231
    , 1232-33 (Fla. 3d DCA
    2011).
    On remand, the trial court may either summarily deny the motion and attach
    to its order those portions of the record which conclusively show that appellant is
    2
    entitled to no relief, or hold an evidentiary hearing and then rule on the allegations.
    
    Id. Reversed and
    remanded.
    3
    

Document Info

Docket Number: 17-0546

Filed Date: 7/19/2017

Precedential Status: Precedential

Modified Date: 7/20/2017