From Casetext: Smarter Legal Research

Rector v. State

District Court of Appeal of Florida, Fourth District
Mar 6, 1996
668 So. 2d 1104 (Fla. Dist. Ct. App. 1996)

Summary

holding that post-conviction motion that is notarized on a certain date is deemed filed on that date

Summary of this case from Napolitano v. State

Opinion

No. 96-3374.

March 6, 1996.

Appeal of order denying rule 3.860 motion from the Circuit Court of the Seventeenth Judicial Circuit, Broward County; Robert W. Tyson, Jr., Judge.

Martin Wayne Rector, Arcadia, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.


Appellant, Martin Wayne Rector, defendant below (Defendant), appeals a summary denial of his rule 3.860 motion without an evidentiary hearing and an order denying Defendant's motion for rehearing. We reverse because the trial court erred in finding that Defendant's rule 3.860 motion was untimely filed and an evidentiary hearing should have been held on Defendant's allegations of ineffective assistance of counsel.

A judgment and sentence becomes final and the two year time limit of Rule 3.860 (b) commences when the Florida Supreme Court disposes of a petition for review of the district court's decision on direct appeal. Gallo v. State, 671 So.2d 78, 79 (Fla. 4th DCA 1990); Brown v. State, 617 So.2d 1106 (Fla. 1st DCA 1993). Furthermore, Rule 3.040, Florida Rules of Criminal Procedure, provides that in computing the two year time limit, the day of the act or event from which the designated period of time begins to run is not to be included. Finally, a Rule 3.860 motion that is notarized on a certain date is deemed to have been filed on that date. Olkewicz v. State, 633 So.2d 1132 (Fla. 4th DCA 1994).

In the instant case, the Florida Supreme Court declined Defendant's petition for review of this court's decision on direct appeal on January 26, 1993. Rector v. State, 613 So.2d 8 (Fla. 1993). Thus, according to Rule 3.040, Florida Rules of Criminal Procedure, the two year time limit began to run the following day, January 27, 1993, and ran until January 27, 1996. Defendant's motion for post-conviction relief was notarized on January 27, 1996. Accordingly, Defendant timely filed his Rule 3.860 motion for post-conviction relief.

Upon remand, we direct the trial court's attention to only one of three issues raised by Defendant, Defendant's ineffective assistance of counsel claim. In his motion for post-conviction relief, Defendant alleged that his appointed attorney told the jury that Defendant was, in fact, guilty of killing the victim. Defendant also alleged that his counsel then proceeded to attack the lack of physical evidence.

While defense counsel is entitled to broad discretion concerning trial strategy, where the trial court is confronted with a claim of ineffective assistance of counsel, an evidentiary hearing is usually required to determine whether the act or omission complained of was tactical. Anthony v. State, 660 So.2d 374, 376 (Fla. 4th DCA 1996). Moreover, Florida Rule of Appellate Procedure 9.140 (g) provides that "unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing."

Because no record excerpts of defense counsel's statements were attached to the order appealed, the record does not conclusively refute Defendant's allegations of ineffective assistance of counsel. Accordingly, we reverse and remand for an evidentiary hearing to resolve the disputed issue as to defense counsel's trial strategy in admitting Defendant's guilt. On all other issues, we affirm.

REVERSED AND REMANDED.

DELL and STEVENSON, JJ., concur.


Summaries of

Rector v. State

District Court of Appeal of Florida, Fourth District
Mar 6, 1996
668 So. 2d 1104 (Fla. Dist. Ct. App. 1996)

holding that post-conviction motion that is notarized on a certain date is deemed filed on that date

Summary of this case from Napolitano v. State
Case details for

Rector v. State

Case Details

Full title:MARTIN WAYNE RECTOR, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fourth District

Date published: Mar 6, 1996

Citations

668 So. 2d 1104 (Fla. Dist. Ct. App. 1996)

Citing Cases

Persaud v. State

Although we adhere to our view that this appeal is properly decided without an opinion, we grant the motion…

Olenchak v. State

The State argued this claim involved trial strategy by defense counsel. However, such claims ordinarily must…