Opinion
Case No. 97-03003
Opinion filed October 3, 1997.
Appeal pursuant to Fla. R. App. P. 9.140(i) from the Circuit Court for Pinellas County; Nelly Khouzam, Judge.
Tommy Lee Ward challenges the trial court's order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court found that the motion was untimely, and denied it. Ward raised two issues in his motion. We affirm the trial court's ruling regarding his first claim. We reverse and remand for further proceedings on the second claim.
Ward pleaded guilty to robbery with a firearm and was sentenced to twenty-five years in prison as a habitual offender, with a three-year minimum mandatory term. In the motion giving rise to this proceeding, Ward alleged that it was his codefendant, not he, who had physical possession of the firearm and that, therefore, the minimum mandatory portion of the sentence is illegal. This claim may be raised pursuant to Florida Rule of Criminal Procedure 3.800, which does not impose a two-year limitation on the filing of claims. See Mancino v. State, 689 So.2d 1235 (Fla. 2d DCA 1997), rev. granted, State v. Mancino, No. 90,174 (Fla. June 26, 1997). Although Ward filed his motion under rule 3.850, he alleged a sufficient claim for relief under rule 3.800. See Poiteer v. State, 627 So.2d 526 (Fla. 2d DCA 1993).
We have the authority to treat a prisoner's petition as if the proper remedy were sought if it would be in the interest of justice to do so. See Fenter v. State, 632 So.2d 685, 686, n.1 (Fla. 2d DCA 1994). Accordingly, we reverse and remand with directions to the trial court to consider this claim. If on remand the trial court again denies this aspect of Ward's motion, it must attach those portions of the record that conclusively demonstrate that Ward is not entitled to relief. As we did inMancino, we certify the following question to the Florida Supreme Court:
AFTER STATE V. CALLAWAY, 658 SO.2d 983 (FLA. 1995), IS FLORIDA RULE OF CRIMINAL PROCEDURE 3.850 RATHER THAN FLORIDA RULE OF CRIMINAL PROCEDURE 3.800(a) THE APPROPRIATE POSTCONVICTION PROCEDURAL MECHANISM FOR CONTESTING A THREE-YEAR MINIMUM MANDATORY SENTENCE IMPOSED PURSUANT TO SECTION 775.087(2), FLORIDA STATUTES, ON THE BASIS THAT A FIREARM WAS NOT POSSESSED DURING THE COMMISSION OF ONE OF THE STATUTORILY DESIGNATED FELONIES?
Also as we did in Mancino, we certify conflict with the decision of the First District in Wickline v. State, 687 So.2d 327 (Fla. 1st DCA 1997), and the decision of the Third District in Young v. State, 616 So.2d 1133 (Fla. 3d DCA 1993).
Affirmed in part; reversed in part and remanded for further proceedings; conflict and question certified.
SCHOONOVER, A.C.J., and FULMER and NORTHCUTT, JJ., Concur.