MICHAEL VENABLE v. STATE OF FLORIDA , 227 So. 3d 644 ( 2017 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL VENABLE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D16-4343
[September 27, 2017]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Paul L. Backman,
Judge; L.T. Case No. 10-001384 CF10A.
Michael Venable, Bristol, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Michael Venable appeals the denial of an amended rule 3.850 motion
as untimely filed. On February 11, 2015, he timely filed his original rule
3.850 motion raising two claims. On May 11, 2015, the trial court denied
the original motion without prejudice for appellant to file an amended
motion with a proper oath and to correct the date in the certificate of
service. The order did not set a specific time for him to refile. Appellant
filed his amended motion less than 30 days later, correcting the
deficiencies and raising an additional claim. See Fla. R. Crim. P. 3.850(e).
The trial court denied the amended motion as time-barred.
The first two claims relate back to the original motion, which was timely
filed. In response to this Court’s order to show cause, the State agrees
that these two claims should be remanded for consideration by the trial
court. The third claim does not relate back to the original motion, and it
was not timely filed within the two-year time limit for rule 3.850(b)
motions.
Accordingly, the trial court’s order is reversed in part. Denial of the
third claim is affirmed, and the case is remanded for the trial court to
consider the first two claims made in appellant’s June 3, 2015 amended
motion on the merits. See Rico v. State, 71 So. 3d 245 (Fla. 4th DCA 2011).
Affirmed in Part, Reversed and Remanded in Part.
GROSS, TAYLOR and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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