Opinion
No. 2D05-4388.
March 3, 2006.
Appeal pursuant to Fla.R.App.P. 9.141(b)(2) from the Circuit Court for Polk County; Dick Prince, Judge.
Jason C. Lemay challenges the postconviction court's order summarily denying as untimely his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. Although we conclude Lemay's motion was timely filed, we affirm the postconviction court's order because Lemay's motion is facially insufficient. See Fla. R.Crim. P. 3.853(b)(1). This affirmance is without prejudice to Lemay's right to file a timely, facially sufficient rule 3.853 motion. Any such motion should not be considered successive.
See In re: Amendments to Florida Rule of Criminal Procedure 3.853(d) , No. SC05-1702 (Fla. Sept. 29, 2005) (extending the deadline for filing a motion for postconviction DNA testing in rule 3.853(d)(1)(A) from October 1, 2005, to July 1, 2006).
Affirmed.
WHATLEY and SILBERMAN, JJ., Concur.