Napolitano v. State

782 So.2d 1012 (2001)

Ronald NAPOLITANO, Appellant,
v.
STATE of Florida, Appellee.

No. 4D00-4179.

District Court of Appeal of Florida, Fourth District.

April 25, 2001.

Ronald Napolitano, Belle Glade, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant, Ronald Napolitano, appeals from the summary denial of his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

Appellant entered a plea of nolo contendere and was sentenced to seven years in prison on April 24, 1998. He did not appeal, but filed the instant motion on June 8, 2000. The state agrees that the trial court erred in summarily denying the motion as untimely, as the motion was acknowledged before a notary on May 23, 2000, and appellant's certificate of service shows the same date.

Appellant's conviction and sentence became final on May 26, 1998,^[1] when the time within which he could have filed an appeal expired. See Caracciolo v. State, 564 So.2d 1163, 1164 (Fla. 4th DCA 1990); Ramos v. State, 658 So.2d 169, 170 (Fla. 3d DCA 1995); Gust v. State, 535 So.2d 642, 643 (Fla. 1st DCA 1988). Therefore, appellant had until May 26, 2000, in which to file a rule 3.850 motion. His motion should be treated as timely filed on May 23, 2000, the date he apparently turned it over to prison authorities for mailing. See Thompson v. State, 761 So.2d 324, 325 (Fla.2000). The state admits it cannot rebut the presumption that appellant placed his motion in the hands of prison officials on May 23, 2000, because appellant's institution does not maintain logs of outgoing mail. See also Rector v. State, 668 So.2d 1104 (Fla. 4th DCA 1996) (holding that post-conviction motion that is notarized on a certain date is deemed filed on that date).

Accordingly, we reverse and remand for the trial court to consider the merits of appellant's post-conviction motion.

STEVENSON, GROSS and TAYLOR, JJ., concur.

NOTES

[1] May 24, 1998 was a Sunday; May 25, 1998 was Memorial Day.