Wryals v. State , 2004 Fla. App. LEXIS 10157 ( 2004 )

ON MOTION FOR REHEARING

GRIFFIN, J.

Appellant, Joseph M. Wryals, has filed a motion for rehearing or for clarification of our per curiam affirmance in this case, seeking either reconsideration or a written opinion. We grant the motion, withdraw our prior decision and issue the following opinion in its stead:

Convicted of sexual battery and five other sexual offenses, Joseph M. Wryals [“Wryals”] appeals the trial court’s order summarily denying his rule 3.853 motion for DNA testing. The trial court ruled that Wryals’ motion, filed on October 30, 2003, was untimely. Florida Rule of Criminal Procedure 3.853(d)(1)(A) provides that a motion for DNA testing must be filed within two years following the date the conviction was affirmed on direct appeal, if an appeal was taken, or by October 1, 2003, whichever occurs later. Wryals’ direct appeal in 5D87-1244 resulted in a per curiam affirmance over fifteen years ago, and he missed the October 1, 2003, cutoff date. However, in Amendments to Florida Rule of Criminal Procedure 3.853(d)(1)(A), 857 So.2d 190 (Fla.2003), the October 1, 2003, deadline of the rule was suspended until “further order” of the court.

Accordingly, we reverse and remand to the trial court for consideration of the merits of the motion.

REVERSED and REMANDED.

SAWAYA, C.J., and PLEUS, J., concur.