Opinion
No. 4D06-4786.
February 7, 2007.
Appeals of orders denying rule 3.850 motions from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Burton C. Conner, Judge; L.T. Case Nos. 562001CF004163C, 562001CF004164B, and 562002CF00066A.
Thomas B. Luka of Thomas B. Luka, P.A., Orlando, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
Affirmed.
WARNER, FARMER and KLEIN, JJ., concur.
ON MOTION FOR REHEARING
We grant the motion for rehearing and again affirm. Defendant claims he was illegally sentenced in absentia and that under rule 3.850 he is entitled to resentencing according to our decision in Zuluaga v. State, 793 So.2d 60 (Fla. 4th DCA 2001). He misreads Zuluaga.
We note that defendant's rule 3.850 claim does not state under oath that his failure to appear for sentencing was involuntary. We take that omission to be in the nature of a negative pregnant assertion: he alleges that he was absent from the sentencing (he was arrested in New York) but not that he was somehow prevented from attending. He claims he is entitled to seek relief under rule 3.850 anyway because, as he argues, the time for filing such motion begins to run only when he is returned to Florida custody.
Effectually described as a negatively pregnant admission, allegation or assertion of a particular fact that implies or makes one understand a positive/affirmative within the allegation. See http://www.legal-explanations. com/definitions/negative-pregnant.htm. Here his claim is that he was absent from the sentencing without qualifying that statement by a positive assertion that his absence was involuntary.
It is true that in Zuluaga we disclaimed making any determination as to whether the 2-year period for filing rule 3.850 claims for post-conviction relief begins to run from the sentencing when a defendant voluntarily absents himself from the proceeding. Nevertheless, our decision on the merits foretells the outcome on that issue. If the voluntary failure of a defendant to appear at sentencing does not render the sentence illegal, there seems little reason to suppose that the time to seek post-conviction relief from the sentence does not begin to run from that legal sentencing. In any event, we now make that holding explicit. When a convicted defendant voluntarily flees from the sentencing and remains away while the court pronounces sentence in his absence, in the absence of any direct appeal from the sentencing or other legal circumstance resulting in a tolling, the time for seeking relief from the sentence under rule 3.850 begins to run from the pronouncement.
WARNER and KLEIN, JJ., concur.