SHEA R. BATSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a motion for rehearing was timely filed because the appellant was entitled to additional days for service by mail.
The postconviction court dismissed a motion for rehearing as untimely because it was filed one day after the fifteen-day limit. The order dismissing t…
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Shea R. Batson appeals the dismissal of his postconviction motion that the post-conviction court treated as a motion to withdraw plea. Mr. Batson challenges the postconviction court’s dismissal of his motion for rehearing of the original order of dismissal as untimely filed. The postcon-viction court dismissed the motion for rehearing as untimely because the order dismissing Mr. Batson’s motion for post-conviction relief was served on January 18, 2012, and Mr. Batson’s motion for rehearing was filed1 on February 3, 2012, which exceeded the fifteen-day time limit of Florida Rule of Criminal Procedure 3.850(h) by one day.
This was error. Because the order dismissing Mr. Batson’s motion for postcon-viction relief was served by mail, Mr. Bat-son was entitled to three extra days — or a total of eighteen days from the date of the order — to file his motion for rehearing. See Fla. R.Crim. P. 3.070; Whipple v. State, 867 So.2d 433, 433 (Fla. 1st DCA 2004). Because the motion was filed on the sixteenth day from service of the post-conviction court’s order dismissing Bat-son’s postconviction motion, the motion for rehearing was timely. Accordingly, we reverse and remand for the postconviction court to consider the motion for rehearing on the merits. See DeLisi v. State, 780 So.2d 174,175 (Fla. 2d DCA 2001).
Reversed and remanded.
KHOUZAM and MORRIS, JJ., Concur.
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Joseph v. State, 157 So. 3d 546 (Fla. 1st DCA 2015)…otice of Appeal was mailed to the Leon County Clerk of Court on August 21, 2013, received and date stamped by the Leon County Clerk on August 22, 2013.... According to the mailbox rule, which is cited in Fla. R. Crim. P. 3.070 and Batson v. Florida, 99 So. 3d 626 (Fla. 2d DCA 2012), the Notice of Appeal was filed timely because it was mailed within the thirty-day limit. This argument is meritless. First, and foremost, Appellant’s assertion that the notice of appeal was timely “because it was mailed within t…
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COX v. State (Fla. 2d DCA 2020)…er the service of a notice or other document on the party and the notice or document is served on the party by mail, when permitted, or email, 3 days shall be added to the prescribed period.") (repealed, effective Jan. 1, 2019); see Batson v. State, 99 So. 3d 626, 627 (Fla. 2d DCA 2012) ("Because the order dismissing Mr. Batson's motion for postconviction relief was served by mail, Mr. Batson was entitled to three extra days—or a total of eighteen days from the date of the order—to file his motion for rehear…
Authorities Cited
- Whipple v. State, 867 So. 2d 433 (Fla. 1st DCA 2004)
- DeLISI v. State, 780 So. 2d 174 (Fla. 2d DCA 2001)