Summary
finding that Rule 3.850 motion was not successive as previous motions either sought relief pursuant to Rule 3.800 or sought an extension of time to file a Rule 3.850 motion
Summary of this case from Kuiken v. StateOpinion
No. 3D05-274.
July 20, 2005.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Israel Reyes, Judge.
Alberto Rivas, in proper person.
Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera, Assistant Attorney General, for appellee.
Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
Defendant appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion, which the trial court denied as successive. We reverse.
A review of the motions previously filed by defendant demonstrates that the June 4, 2004 Rule 3.850 motion under consideration was timely and not successive. Defendant filed several Rule 3.800 motions attacking his sentence, and filed a motion entitled "Motion for Post Conviction Relief/Extension of Time" in which he merely requested an extension of time to file a Rule 3.850 motion. The trial court denied this motion as successive. In the June 4 motion, entitled "Motion for Rehearing and Clarification Pursuant to Rule 3.850(g)," defendant raised several ineffective assistance of trial counsel claims. Because the previous motions either sought relief pursuant to Rule 3.800 or an extension of time to file a Rule 3.850 motion, the court erred in denying the June 4 motion as successive. See Ramirez v. State, 822 So.2d 593, 594 (Fla. 2d DCA 2002). Accordingly, we reverse and remand for consideration of the June 4 motion.
The state concedes that the June 4 motion was filed timely.
Reversed and remanded.