McGuffey v. State , 515 So. 2d 1057 ( 1987 )

PER CURIAM.

Appellant’s motion to vacate under rule 3.850, Florida Rules of Criminal Procedure, was summarily denied after the state, in response to an order to show cause, pointed out that appellant’s judgment and sentence became final in August 1980 and, contrary to the limitation of rule 3.850, Florida Rules of Criminal Procedure, the motion to vacate was filed January 12, 1987.

The pro se motion contains allegations from which it can reasonably be inferred that the facts upon which the claim is predicated were unknown to appellant until July 1986 and could not have been ascertained by the exercise of due diligence earlier than that date. The motion also alleges that in November 1986 appellant had filed in this court a petition for writ of habeas corpus alleging the identical facts, which this court by order dated December 30, 1986 had denied “without prejudice to seek same relief via Florida Rule of Criminal Procedure 3.850 in the trial court.”

Since the motion alleges, at least by inference, matters which would bring it within the exception to the two-year limitation of rule 3.850, Florida Rules of Criminal Procedure, and since the motion is otherwise legally sufficient on its face, the order denying it without an evidentiary hearing is reversed and this cause remanded for further proceedings. The burden remains upon appellant to prove his claimed exception to the two-year limitation and his due diligence after the facts upon which the claim is predicated became known to him.

REVERSED AND REMANDED.

HERSEY, C.J., STONE, J., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.