Pearson v. State , 141 So. 3d 722 ( 2014 )

Third District Court of Appeal
State of Florida
Opinion filed July 2, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-955
Lower Tribunal No. 07-21231
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Herbert Larry Pearson,
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.
Herbert Larry Pearson, in proper person.
Pamela Jo Bondi, Attorney General, for appellee.
Before SUAREZ, ROTHENBERG, and LOGUE, JJ.
PER CURIAM.
We reverse the trial court’s denial of the defendant’s petition filed pursuant
to Florida Rule of Criminal Procedure 3.850. The defendant was sentenced
pursuant to a plea on August 9, 2011. On August 8, 2013, he placed his Rule
3.850 petition into hands of the prison mailroom official. The petition was clearly
date stamped: “Provided to Martin Correctional Institution on 8/8/13 for mailing”
and initialed by the mailroom official. The prison mailroom log shows the petition
was placed in outgoing mail to the Clerk of Court on August 9, 2013, exactly two
years from the date of conviction and sentence.
As stated by this Court in Saavedra v. State, 59 So. 3d 191 (Fla. 3d DCA
2011), “[t]he two-year time limitation for filing motions for post-conviction relief
pursuant to Florida Rule of Criminal Procedure 3.850 does not begin to run until
appellate proceedings have concluded and the court issues a mandate or thirty days
after the judgment and sentence become final if no direct appeal is filed.” In
addition, in Ramos v. State, 658 So. 2d 169 (1995), this Court stated: “where the
motion for post-conviction relief is essentially a motion to set aside the plea and no
previous appeal has been taken, the judgment and sentence do not become “final”
for purposes of the rule until the thirty-day period for filing an appeal expires.”
Applying those cases here, defendant’s sentence was not final until September 8,
2013 and his motion was timely filed.
We reverse and remand for consideration of the defendant’s Rule 3.850
petition on the merits.
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