CEASAR DOUGLAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ceasar Douglas appealed the summary denial of his Rule 3.850 postconviction motion alleging ineffective assistance of counsel regarding his guilty plea to sexual battery. The court reversed and remanded because while the motion may have been timely under the newly discovered evidence exception, it was facially insufficient and should be dismissed without prejudice to allow refiling with adequate facts.
The court held that Douglas's motion may have been timely because the triggering event for the two-year filing period is when the Department of Corrections informed the prisoner of gain time forfeiture, not the original judgment date. However, the motion was facially insufficient because Douglas failed to provide adequate explanation for why he could not have discovered the gain time forfeiture when he was previously released on conditional release in 1998 and returned to prison.
[1] A motion for postconviction relief is facially insufficient if it fails to provide an explanation for why the movant could not have known of the alleged newly discovered…
[2] The two-year period for filing a motion for postconviction relief based on newly discovered evidence of gain time forfeiture begins to run from the date the Department of…
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Join FLexlaw to unlock all legal intelligence“the triggering event for the two-year period in which to file a rule 3.850 motion is not the date of the judgment in the criminal proceeding in which the prisoner pleaded, but the date on which the DOC informed the prisoner of the gain time forfeiture and that the DOC determination of gain time constituted newly discovered information within the meaning of rule 3.850(b)(1).”
Establishes the controlling standard for when the statute of limitations begins to run in gain time forfeiture cases under Rule 3.850
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Join FLexlaw to unlock all legal intelligenceIn 1992, Douglas pleaded nolo contendere to sexual battery and was sentenced to fifteen years. He was conditionally released in 1998 and again in 2005…
The full statement of facts, procedural history, and disposition for this case are member content.
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SILBERMAN, Judge.
Ceasar Douglas appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for the postconviction court to dismiss Douglas’s motion without prejudice to any right Douglas might have to file a facially sufficient motion.
In 1992, Douglas pleaded nolo contende-re to one count of sexual battery and was sentenced to fifteen years’ imprisonment. In his postconviction motion, he alleges that his counsel informed him that his actual sentence would be shorter because he would earn gain time. Douglas alleges that' he was released from prison on conditional release in 1998 and again in 2005. Although he does not provide details in his motion, he filed a brief with this court indicating that in 1999 he was arrested for a new offense and was incarcerated to finish his original sentence. Then, after his conditional release in 2005, he again was arrested and sent back to prison.
In his postconviction motion, Douglas asserts that as a result of violating conditional release, his gain time was forfeited and he had to complete the full fifteen-year sentence. He states that he did not learn of the gain time forfeiture until October 17, 2006, and contends that this constitutes newly discovered evidence of his counsel’s ineffective representation. . He states that his attorney misrepresented the potential length of his imprisonment and also failed to advise him of the possible forfeiture of gain time for violation of conditional release. He concludes that counsel’s errors rendered his plea involuntary because he would have gone to trial if he had been correctly advised.
The postconviction court summarily denied Douglas’s motion, finding that it was untimely under rule 3.850. The court stated that Douglas should have filed the motion within two years of his 1992 judgment and sentence becoming final. As to Douglas’s argument concerning newly discovered evidence, the court observed that Douglas “provides no explanation for why, by the exercise of due diligence, he could not have learned” of the forfeiture of his gain time prior to October 17, 2006. The court noted that Douglas had previously been released on conditional release and then returned to prison and that “[t]here is no accounting for the more than six-year delay.”
In Galindez v. State, 909 So. 2d 597, 598 (Fla. 2d DCA 2005), this court reiterated that the triggering event for the two-year period in which to file a rule 3.850 motion is not the date of the judgment in the criminal proceeding in which the prisoner pleaded, but the date on which the DOC informed the prisoner of the gain time forfeiture and that the DOC determination of gain time constituted newly discovered information within the meaning of rule 3.850(b)(1).
See also Beasley v. State, 958 So. 2d 1086, 1087-88 (Fla. 2d DCA 2007) (following Galindez, 909 So. 2d at 598); Hall v. State, 891 So. 2d 1066, 1067 (Fla. 2d DCA 2004) (noting that the two-year period began to run once the Department of Corrections informed the defendant of the forfeited gain time); Spradley v. State, 868 So. 2d 632, 633 (Fla. 2d DCA 2004) (same). Accordingly, Douglas’s motion may be timely.
We conclude, however, that Douglas’s motion is not facially sufficient. As noted by the postconviction court, Douglas had been previously released on conditional release and then returned to prison. Douglas provides no information explaining why he did not know or could not have known of the forfeiture of his gain time when in 1998 he had been conditionally released and later returned to prison to complete his sentence, apparently after violating the terms of his conditional release.
In Douglas’s sworn brief filed in this court, he alleges additional facts relating to his claim. We cannot consider that information because he did not include it in his postconviction motion or supporting memorandum. See Garnto v. State, 830 So. 2d 901, 902 (Fla. 2d DCA 2002).
Because Douglas’s motion is facially insufficient, we reverse the order denying the motion and remand for the postconviction court to enter an order dismissing the motion without prejudice for Douglas to file a facially sufficient motion.
Reversed and remanded.
WHATLEY and DAVIS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dwyer v. State, 981 So. 2d 606 (Fla. 4th DCA 2008)…pplication of long-standing statutory law. For this reason, the defendant’s reliance on the exception to the two-year time bar is misplaced. We are aware that the Second District Court of Appeal has reached contrary conclusions in Douglas v. State, 977 So. 2d 776 (Fla. 2d DCA 2008) (noting the motion may be timely, but remanding for dismissal without prejudice due to the facial insufficiency of the motion); Boykins v. State, 976 So. 2d 700 (Fla. 2d DCA 2008) (reversing denial of post-conviction relief based…
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Singleton v. State, 981 So. 2d 1259 (Fla. 2d DCA 2008)…e, 958 So. 2d 1086, 1087-88 (Fla. 2d DCA 2007); Galindez v. State, 909 So. 2d 597, 598 (Fla. 2d DCA 2005); Hall v. State, 891 So. 2d 1066, 1067 (Fla. 2d DCA 2004); Spradley v. State, 868 So. 2d 632, 633 (Fla. 2d DCA 2004); see also Douglas v. State, 977 So. 2d 776, 777-78 (Fla. 2d DCA 2008). We have concluded that such gain time misadvice claims present circumstances that fall within the scope of the time limitation exception under rule 3.850(b)(1) for claims predicated on “facts [that] were un [*1261] known…
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Chandler v. State, 1 So. 3d 284 (Fla. 2d DCA 2009)…the proposition that claims of affirmative mis-advice by counsel concerning gain time eligibility or gain time forfeiture were timely if they were filed within two years of the defendant learning of the actual misadvice. See, e.g., Douglas v. State, 977 So. 2d 776, 777-78 (Fla. 2d DCA 2008); Boykins v. State, 976 So. 2d 700, 700-01 (Fla. 2d DCA 2008); Beasley v. State, 958 So. 2d 1086, 1087-88 (Fla. 2d DCA 2007); Galindez v. State, 909 So. 2d 597, 598 (Fla. 2d DCA 2005); Hall v. State, 891 So. 2d 1066, 1067 (…
Authorities Cited
- Spradley v. State, 868 So. 2d 632 (Fla. 2d DCA 2004)
- Hall v. State, 891 So. 2d 1066 (Fla. 2d DCA 2004)
- Heriberto Galindez v. State, 909 So. 2d 597 (Fla. 2d DCA 2005)
- Artis McCALL v. State, 958 So. 2d 1086 (Fla. 1st DCA 2007)
- Botka v. State, 958 So. 2d 1086 (Fla. 5th DCA 2007)
- Levette McCREA v. State, 830 So. 2d 901 (Fla. 2d DCA 2002)