TYREE GLAND v. STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
TYREE GLAND, )
)
Appellant, )
)
v. ) Case No. 2D17-1802
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed March 7, 2018.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Pinellas County; Philip J. Federico, Judge.
Tyree Gland, pro se.
PER CURIAM.
Tyree Gland appeals the order treating his petition for writ of habeas
corpus as a motion filed under Florida Rule of Criminal Procedure 3.850 and dismissing
it as untimely. We reverse and remand for further proceedings.
In 2010, a jury found Gland guilty of second-degree murder, and the trial
court found him guilty after a nonjury trial of being a delinquent in possession of a
firearm. The trial court sentenced Gland to concurrent terms of life imprisonment for the
murder count and fifteen years' imprisonment for the delinquent in possession of a
firearm count. This court affirmed Gland's convictions and sentences for both offenses
by written opinion. Gland v. State, 72 So. 3d 216, 217 (Fla. 2d DCA 2011) (Gland I). In
2014, the supreme court quashed this court's opinion by unpublished order and
remanded for reconsideration pursuant to Haygood v. State, 109 So. 3d 735, 737 (Fla.
2013) (holding that the fundamental error of giving an erroneous manslaughter by act
jury instruction is not cured by giving a manslaughter by culpable negligence instruction
when the evidence only supports manslaughter by act and the defendant is convicted of
second-degree murder). Gland v. State, No. SC14-29, 2014 WL 2616898, at *1 (Fla.
June 11, 2014) (Gland II).1 Upon remand, this court reversed Gland's conviction of
second-degree murder and remanded for a new trial. Gland v. State, 166 So. 3d 900,
902 (Fla. 2d DCA 2015) (Gland III). The mandate issued on July 6, 2015.
On February 28, 2017, Gland filed a petition for writ of habeas corpus in
which he argued that he did not waive his right to a jury trial for the charge of delinquent
in possession of a firearm and that his bench trial violated his Sixth Amendment rights.
Because Gland's petition challenged his conviction, the postconviction court correctly
treated it as a motion filed under rule 3.850. The court then dismissed the motion as
untimely, finding that Gland's conviction and sentence for the delinquent in possession
of a firearm count became final when the mandate issued for Gland I. The court noted,
citing Gland III, that when the supreme court "remanded for proceedings consistent with
Haygood, [Gland's] conviction for [delinquent in possession of a firearm] was not
disturbed."
1There is a reporter citation for this case, Gland v. State, 145 So. 3d 824
(Fla. 2014), but it is a table decision. The unpublished order can only be found on
Westlaw.
-2-
The postconviction court's reasoning was incorrect—it is the conclusion of
the direct appeal process, when jurisdiction to entertain a postconviction motion returns
to the sentencing court, that starts the two-year time limitation of rule 3.850, Anton v.
State, 976 So. 2d 6, 8 (Fla. 2d DCA 2008) (quoting Ward v. Dugger, 508 So. 2d 778,
779 (Fla. 1st DCA 1987)), not whether a conviction or sentence is "disturbed" before
that process ends. This fact is illustrated by several cases.
In Snipes v. State, the supreme court affirmed Snipes' first-degree murder
conviction but reversed his death sentence and remanded for the trial court to impose a
sentence of life imprisonment. 843 So. 2d 1043, 1043–44 (Fla. 2d DCA 2003). The
court issued its mandate on May 24, 1999. Id. at 1044. The trial court imposed a life
sentence, and Snipes appealed. Id. This court affirmed and issued its mandate on
January 16, 2001. Id. Snipes then filed a rule 3.850 motion on January 4, 2002. Id.
The postconviction court denied Snipes' motion as untimely, finding that the judgment
Snipes attacked became final when the supreme court issued its mandate on May 24,
1999. Id.
This court reversed based on the plain language of rule 3.850(b) providing
a time limit of two years "after the judgment and sentence become final." Id. (emphasis
omitted); accord Breland v. State, 58 So. 3d 326, 327 (Fla. 1st DCA 2011) ("[T]he two-
year period in the rule does not commence until both the conviction and the sentence
become final, which occurs upon issuance of the mandate in the direct review
proceedings."); Pierce v. State, 875 So. 2d 726, 729 (Fla. 4th DCA 2004) (agreeing with
Snipes). While Snipes' conviction became final in 1999, his sentence did not become
final until this court issued its mandate affirming his sentence on January 16, 2001. See
-3-
Snipes, 843 So. 2d at 1044. Thus, his January 4, 2002, motion was timely. See id.;
accord Gisi v. State, 135 So. 3d 493, 495 (Fla. 2d DCA 2014).
This court cited Snipes in Skeens v. State, 853 So. 2d 494, 495 (Fla. 2d
DCA 2003). Skeens was convicted of committing sexual battery and lewd or lascivious
act upon a child. Id. at 494. We affirmed the sexual battery conviction but reversed the
lewd or lascivious act conviction and remanded for resentencing. Id. (citing Skeens v.
State, 733 So. 2d 1094, 1096 (Fla. 2d DCA 1999) (Skeens I)). After he was
resentenced, Skeens again appealed, and this court remanded to the sentencing court
for reconsideration under intervening case law. Id. (citing Skeens v. State, 779 So. 2d
418 (Fla. 2d DCA 2000) (Skeens II)). The sentencing court resentenced Skeens for the
sexual battery, but he did not appeal. Id. On October 21, 2002, he filed a rule 3.850
motion. Id. The postconviction court found that Skeens' motion was untimely because
it was filed more than two years after the sexual battery conviction became final upon
issuance of this court's mandate for Skeens I in 1999. Id.
This court reversed, holding that Skeens' postconviction motion was timely
because "the two-year time limitation of rule 3.850(b) cannot begin to run until the direct
appeal process has concluded." Id. at 495 (citing Snipes, 843 So. 2d at 1044). The
opinion explained that
since [Skeens'] conviction was affirmed by his initial direct
appeal (Skeens I) and he did not appeal the sentence
imposed after his second direct appeal (Skeens II), the direct
appeal process ended and his judgment and sentence
became final on December 13, 2000, when the time expired
for the filing of a direct appeal from his second resentencing.
See McGee v. State, 684 So. 2d 241, 242 (Fla. 2d DCA
1996) (holding that a judgment and sentence which are not
appealed become final when "the thirty-day period for taking
an appeal has expired").
-4-
853 So. 2d at 495.
In the present case, the direct review proceedings concluded on July 6,
2015, when the mandate issued for this court's opinion in Gland III reversing Gland's
conviction of second-degree murder and remanding for a new trial on that count only.2
Gland's rule 3.850 motion filed on February 28, 2017, was therefore timely.
Accordingly, we reverse the postconviction court's order dismissing
Gland's rule 3.850 motion as untimely and remand with directions for the court to
address the motion on its merits.
Reversed and remanded.
CASANUEVA, SILBERMAN, and BADALAMENTI, JJ., Concur.
2In addition, we note that when the supreme court granted Gland's petition
for review, it quashed this court's "decision in this case" and remanded the case for
reconsideration. Gland II, 2014 WL 2616898, at *1. The quashed decision affirmed
Gland's convictions and sentences for both offenses. Gland I, 72 So. 3d at 216. Thus,
the language of the opinion itself reveals that Gland's conviction and sentence for the
delinquent in possession of a firearm count were no longer final as a result of Gland II.
-5-