Balas v. State , 2016 Fla. App. LEXIS 13524 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ANDREW C. BALAS, )
)
Appellant, )
)
v. ) Case No. 2D15-2286
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed September 9, 2016.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Pinellas County; Nancy Moate Ley,
Judge.
NORTHCUTT, Judge.
Andrew C. Balas appeals the order summarily disposing of his motion and
amended motion for postconviction relief pursuant to Florida Rule of Criminal Procedure
3.850. Balas raised three grounds for relief. We affirm the dismissal of grounds two
and three without further comment. However, we reverse the summary denial of
Balas's amended ground one because the postconviction court overlooked his timely
supplement to his amended ground one.
Balas entered an open guilty plea to one count of causing death or serious
bodily injury by carelessly or negligently operating a motor vehicle while his driver's
license was revoked. See § 322.34(6)(b), Fla. Stat. (2010). The trial court sentenced
Balas to 90.75 months' imprisonment, which the sentencing transcript indicates was the
lowest permissible sentence that he could receive under his Criminal Punishment Code
(CPC) scoresheet. Balas appealed, but on July 3, 2013, this court granted his motion to
voluntarily dismiss his appeal.
On June 6, 2014, Balas filed his original rule 3.850 motion raising three
grounds for relief. The postconviction court reserved ruling on grounds two and three,
and it struck ground one as facially insufficient. Ground one asserted that counsel's
misadvice rendered Balas's plea involuntary and that counsel performed ineffectively at
sentencing. The court granted Balas leave to amend the claims set forth in ground one.
See Fla. R. Crim. P. 3.850(f)(3). It then granted a motion for extension of time, which
directed Balas to file his amended motion on or before March 16, 2015.
On February 4, 2015, Balas filed a motion amending his claims in ground
one and providing additional details regarding his counsel's alleged misadvice and
deficient performance. Balas further expanded his allegations from ground one with the
filing of another amended motion on March 6, 2015.
On March 31, 2015, the postconviction court issued an order addressing
the original motion and the February motion. The postconviction court denied amended
ground one as conclusively refuted by the record, and it dismissed grounds two and
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three as not cognizable in a rule 3.850 motion. The court failed to address the March
motion. 1
Any claims in the March motion that related to amended ground one in the
February motion were timely filed under the postconviction court's order extending the
period for Balas to amend that claim. Further, any new claims raised in either the
February or March motions were timely filed within two years following the voluntary
dismissal of Balas's direct appeal. See Fla. R. Crim. P. 3.850(b); Cabrera v. State, 721
So. 2d 1190, 1191 (Fla. 2d DCA 1998) (holding that the two-year time period to file a
rule 3.850 motion begins when the district court grants a motion to voluntarily dismiss a
direct appeal). Therefore, the court should have addressed those new claims on the
merits because it had never ruled on the merits of Balas's original motion. See Fla. R.
Crim. P. 3.850(e); Pritchett v. State, 884 So. 2d 417, 418 (Fla. 2d DCA 2004) (holding
that the postconviction court erred in denying a motion to supplement a rule 3.850
motion because both the original and amended motions were filed within the statutory
two-year time limitation and the postconviction court had not issued a final order
disposing of the claims in the original motion); cf. Hempstead v. State, 980 So. 2d 1254,
1258 (Fla. 2d DCA 2008) (holding that amendments made to a motion after the
postconviction court ruled on the original motion were improper, successive motions).
Accordingly, without commenting on the merits or facial sufficiency of any
of the amended or new claims in the February and March motions, we reverse the order
denying amended ground one in the February motion and remand for the postconviction
1In fact, the circuit court docket reflects that the postconviction court has
yet to dispose of the March motion.
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court to reconsider the February motion in conjunction with its consideration of the
March motion.
Affirmed in part; reversed in part; remanded.
LaROSE and SLEET, JJ., Concur.
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