Opinion
No. 3D00-359.
Opinion filed April 4, 2001.
An Appeal under Fla.R.App.P. 9.141(b)(2) from the Circuit Lower Tribunal No. 94-31535. Court for Dade County, Peter R. Lopez, Judge.
Reversed and Remanded for further proceedings consistent with this opinion.
John Ballester, in proper person. Robert A. Butterworth, Attorney General, for appellee.
Before Gersten, Goderich, and Shevin, JJ.
The appellant, John Ballester, appeals from the denial of his 3.850 motion as untimely. The defendant contends that the two-year period for filing his motion for post-conviction relief was tolled because he did not have access to Florida legal materials while incarcerated in federal prison, thereby depriving him of access to Florida courts. Because the record is not clear, we reverse and remand for an evidentiary hearing to determine whether the defendant was deprived of access to Florida legal materials or whether he was represented by counsel during the relevant time period. Rolling v. State, 755 So.2d 184 (Fla. 3d DCA), reh'g granted, 767 So.2d 570 (Fla. 3d DCA 2000); Demps v. State, 696 So.2d 1296 (Fla. 3d DCA 1997).