Ayo v. State , 708 So. 2d 692 ( 1998 )

708 So. 2d 692 (1998)

Glenn Charles AYO, Appellant,
v.
STATE of Florida, Appellee.

No. 98-628.

District Court of Appeal of Florida, Fifth District.

April 24, 1998.

Glenn Charles Ayo, Sneads, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Glenn Charles Ayo filed a timely Rule 3.850 motion within two years and 30 days of a judgment and sentence that had not been appealed. See, e.g., Davis v. State, 687 So. 2d 292 (Fla. 2d DCA 1997). Ayo then requested an extension of time to amend his 3.850 motion but the trial court denied the request.

Ayo now appeals that denial of his request for extension of time to amend. Absent an abuse of discretion, a trial court's decision to permit or refuse to allow an amendment to a pleading will not be disturbed on appeal. See Ohio Cas. Ins. Co. v. MRK Const., Inc., 602 So. 2d 976 (Fla. 2d DCA 1992); K.D. Lewis Enterprises Corp., Inc. v. Smith, 445 So. 2d 1032 (Fla. 5th DCA 1984). In Daytona Beach Racing & Recreational Facilities District v. Volusia County, 355 So. 2d 175 (Fla. 1st DCA 1978), aff'd, 372 So. 2d 419 (Fla. 1979), the court held that it was not an abuse of discretion to refuse permission to allow a belatedly requested amendment.

We affirm the denial, but remand to the trial court with directions to rule upon Ayo's original 3.850 motion that was timely filed. No disposition has yet been made of the allegations in that original motion.

AFFIRMED; REMANDED.

PETERSON, THOMPSON and ANTOON, JJ., concur.