Opinion
No. 3D19-1239
08-14-2019
Robert HANNA, Appellant, v. The STATE of Florida, Appellee.
Robert Hanna, in proper person. Ashley Moody, Attorney General, for appellee.
Robert Hanna, in proper person.
Ashley Moody, Attorney General, for appellee.
Before HENDON, MILLER and LOBREE, JJ.
HENDON, J. Robert Hanna ("Hanna") appeals from the trial court's order dismissing as untimely filed his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. As the postconviction motion was timely filed, we reverse the order under review and remand for consideration on the merits.
Hanna appealed his conviction and sentence for manslaughter (3D15-5). On April 27, 2016, this Court issued an opinion affirming Hanna's conviction and sentence, noting that in rejecting Hanna's Melbourne claim, the Court was joining in Spencer v. State, 196 So. 3d 400 (Fla. 2d DCA 2016), and Ivy v. State, 196 So. 3d 394 (Fla. 2d DCA 2016). Hanna v. State, 194 So. 3d 424 (Fla. 3d DCA 2016). Following this Court's disposition of Hanna's motion for rehearing and rehearing en banc, this Court issued its mandate on June 16, 2016.
Melbourne v. State, 679 So. 2d 759 (Fla. 1996).
After this Court issued its mandate, the Defendant filed a notice of discretionary review in the Florida Supreme Court (SC16-1117). The Florida Supreme Court stayed the proceedings pending its disposition in Ivy v. State (SC16-988) and Spencer v. State (SC16-1599). After the Florida Supreme Court issued its opinion in Spencer v. State, 238 So. 3d 708 (Fla. 2018), the Court ordered Hanna to show cause why it should not decline to accept jurisdiction. Following Hanna's response, on December 21, 2018, the Florida Supreme Court declined to accept jurisdiction of Hanna's case.
On May 15, 2019, Hanna provided his 3.850 motion for mailing, which was later filed in the lower tribunal on May 22, 2019. Without any response from the State, the trial court dismissed Hanna's 3.850 motion finding that the motion was time barred, noting that Hanna's case was affirmed in June 2016. Hanna's appeal followed.
In Mullins v. State, 974 So. 2d 1135 (Fla. 3d DCA 2008), this Court held that "[w]hile the Florida Supreme Court's decision to accept or deny the petition [for discretionary review] was pending, the two-year period for filing a postconviction relief motion pursuant to Rule 3.850(b) was tolled." In the instant case, as Hanna filed his 3.850 motion within two years of the Florida Supreme Court's denial of discretionary review of this Court's decision affirming Hanna's conviction and sentence, Hanna's 3.850 motion for postconviction relief was timely filed. Accordingly, we reverse the order under review and remand for consideration on the merits.
Reversed and remanded.