King v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JARVIS KING, )
)
Appellant, )
)
v. ) Case No. 2D14-3422
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________ )
Opinion filed December 31, 2014.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Pinellas County; Cynthia J. Newton,
Judge.
Jarvis King, pro se.
PER CURIAM.
Jarvis King appeals the order denying his motion for postconviction relief
filed under Florida Rule of Criminal Procedure 3.850. King's motion was denied after
many of his claims were stricken with leave to amend. When the postconviction court
did not receive a timely amendment, the court entered a final order denying relief. On
appeal, King filed a notice to this court accompanied by an amended motion with
certificate of service reflecting that the motion was indeed timely filed under the mailbox
rule, see Haag v. State, 591 So. 2d 614, 617 (Fla. 1992), although it apparently did not
reach the court. Because the postconviction court was not presented with this amended
motion, we affirm the order on appeal without prejudice to King to refile his amended
motion with the postconviction court within sixty days of the date of the issuance of the
mandate in this case. Should King elect to refile his motion, the postconviction court
should presume his motion was filed on the date listed on the certificate of service. See
Fla. R. App. 9.420(a)(2); Rosier v. State, 144 So. 3d 604, 606 (Fla. 2d DCA 2014)
("Absent proof otherwise, the date reflected on the certificate of service of a pro se
inmate's document is presumed to be the date on which the document was filed."
(citations omitted)). The State, however, may litigate the timeliness of the motion. See
id. (noting that when the presumption of filing on the date listed on an inmate's
certificate of service arises, "the burden shifts 'to the State to prove that the document
was not timely placed in prison officials' hands for mailing' " (quoting Thompson v. State,
761 So. 2d 324, 326 (Fla. 2000)).
Affirmed.
SILBERMAN, WALLACE, and SLEET, JJ., Concur.
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