Opinion
Case No. 4D01-1737.
Opinion filed October 24, 2001. Rehearing Denied December 19, 2001
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; James I. Cohn, Judge; L.T. Case No. 97-907 CF10A.
Mahlard K. Boyd, Miami, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
Appellant seeks review of an order which denied his rule 3.850 motion for post-conviction relief on the ground that it was untimely. Appellant's motion was due on April 13, 2000, and prior to that date, on April 10, appellant filed a motion for extension of time to file the motion. In his motion for extension he explained that on March 29 he had been transferred to another prison, but that his legal papers remained at his former prison where a law clerk had been assisting him, and he had not yet been able to obtain them. He filed his post-conviction motion on May 15, 2000. We reverse.
Rule 3.050 provides in part:
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for good cause shown may, at any time, in its discretion (1) with or without notice, order the period enlarged if a request therefor is made before the expiration of the period originally prescribed.
In Giles v. State, 773 So.2d 1167 (Fla. 2d DCA 2000), the court affirmed an order denying a motion for extension stating that it found no authority in the rules for granting an extension. We disagree with that decision and conclude that extensions for post-conviction relief motions are permissible. We find support for our decision in Ballester v. State, 781 So.2d 503 (Fla. 3d DCA 2001), in which it was held that a federal prisoner deprived of access to his Florida legal documents was not precluded from filing a late rule 3.850 motion directed to his Florida conviction. See also Jennings v. State, 583 So.2d 316 (Fla. 1991) (extending the time for filing a rule 3.850 motion beyond the two year limitation in order to file a Brady claim).
In Rosier v. State, 603 So.2d 120 (Fla. 5th DCA 1992) a prisoner filed a motion to supplement his timely rule 3.850 motion with an affidavit of a witness stating she had falsely incriminated him. The motion to supplement was filed after the expiration of the two year period, and the trial court denied the motion to supplement because it was not timely. In reversing the court first noted that post-conviction proceedings are technically civil proceedings. Allen v. Butterworth, 756 So.2d 52 (Fla. 2000); State v. White, 470 So.2d 1377 (Fla. 1985). The court then applied civil rule 1.190(e), which provides:
At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.
Rosier, 603 So.2d at 121.
We cite Rosier because we see some similarity between allowing an amendment to a 3.850 motion after the time expires, raising a new substantive issue, and extending the time beyond the two year period for the filing of the entire motion. Where there has been no judicial action nor any prejudice to the state, we see no good reason for inflexible adherence to the two year limit. Although two years should normally be ample, movants are, we must remember, usually incarcerated and without counsel.
Chapter 924, Florida Statutes, was amended in 1996 to provide a two year period of limitations for post-conviction motions. § 924.051(6). The state does not rely on this period of limitations perhaps because it recognizes that it may be an unconstitutional encroachment on the Florida Supreme Court's exclusive power to "adopt rules for the practice and procedure in all courts." Art. V, § 2(a), Fla. Const. In Allen v. Butterworth, 756 So.2d 52 (Fla. 2000), the Florida Supreme Court held that this constitutional provision grants it the exclusive authority to set deadlines for post-conviction motions.
We accordingly reverse and remand for further proceedings, which may include an inquiry into whether the facts alleged in the motion for extension are true. We certify conflict with Giles.
Giles, in which the second district found no authority for extensions of time, is consistent with McConn v. State, 708 So.2d 308 (Fla. 2d DCA 1998). In McConn, an en banc opinion, the nine judge majority held that a rule 3.850 motion could not be amended with a new ground after the two year period. Judge Blue wrote a dissenting opinion, in which four other judges concurred, urging that such amendments should be allowed. The Florida Supreme Court left this specific issue open in Brown v. State, 596 So.2d 1026 (Fla. 1992).
SHAHOOD, JJ., concurs.
FARMER, J., concurs specially with opinion.
I concur in Judge Klein's conclusion that rule 3.050 may be used to extend the 2-year deadline for filing motions seeking post-conviction relief under rule 3.850. In Allen v. Butterworth, 756 So.2d 52 (Fla. 2000), the court made clear that the Legislature has no power to establish procedural deadlines affecting post-conviction relief. As the court held:
"we conclude that the writ of habeas corpus and other postconviction remedies are not the type of `original civil action' for which the Legislature can establish deadlines pursuant to a statute of limitations. Due to the constitutional and quasi-criminal nature of habeas proceedings and the fact that such proceedings are the primary avenue through which convicted defendants are able to challenge the validity of a conviction and sentence, we hold that article V, section 2(a) of the Florida Constitution grants this Court the exclusive authority to set deadlines for postconviction motions."
756 So.2d at 62. If not for Allen I would conclude that the deadline set forth in section 924.051(6) is a statute of limitations on such relief that courts would be powerless to enlarge.
I do think that the 2-year period selected by the supreme court for relief under rule 3.850 was chosen in recognition of the fact that persons seeking its relief are prisoners and usually lack counsel when they file such motions. Thus I do not believe that their status as prisoners is a sufficient reason to grant routine enlargements under rule 3.850. In this case the prisoner showed that he had temporarily lost possession of his "legal papers" and thus needed additional time to file his motion. On that basis I join in the enlargement.