Opinion
Case No. 2D03-2502.
Opinion filed February 6, 2004.
Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Jack R. St. Arnold, Judge.
BY ORDER OF THE COURT:
Appellee's motion for rehearing is granted. The opinion dated November 26, 2003, is withdrawn, and the attached opinion is substituted therefor.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.
Charles De Geso challenges the trial court's order summarily dismissing his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court erroneously dismissed the motion as untimely and did not reach the merits of De Geso's claims, we reverse.
On April 28, 1999, a jury found De Geso guilty of two counts of trafficking in cocaine. He was sentenced to eleven and a half years in prison. De Geso appealed, and on December 12, 2000, the mandate of this court issued in which his convictions were affirmed. His sentences were reversed, and the case was remanded. On February 15, 2001, De Geso was resentenced to concurrent terms of 83.2 months in prison. He did not appeal. This motion for postconviction relief was filed on February 18, 2003.
Rule 3.850(b) states that "[n]o other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case. . . ." Fla. R. Crim. P. 3.850 (b) (emphasis added). Accordingly, De Geso had until roughly March 15, 2003, to file a motion for postconviction relief. Therefore, his motion was timely filed.
Reversed and remanded.
COVINGTON and VILLANTI, JJ., Concur.