Summary
reversing the dismissal of an amended rule 3.850 motion as untimely because the order giving the defendant leave to file an amended motion placed no time limitation on when the amended motion could be filed
Summary of this case from Brigham v. StateOpinion
Case No. 4D00-2132.
Opinion filed October 4, 2000. July Term 2000.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ana I. Gardiner, Judge; L.T. Case No. 95-18186CF10.
Victor Mendes, Miami, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
We reverse the summary denial of Victor Mendes' amended motion for postconviction relief. The trial court denied the motion as untimely even though our previous opinion had given Mendes leave to file the amendment. Mendes v. State, 734 So.2d 1168 (Fla. 4th DCA 1999). Since that opinion placed no limitation on when the amended motion could be filed, we cannot agree that the amendment filed almost eight months later was time barred.
We have considered the state's alternative argument that denial would have been proper on a finding that Mendes' claims were procedurally barred. We find that his allegations state legally sufficient claims for postconviction relief. The order summarily denying the amended motion is therefore reversed, and the case is remanded for a ruling on the merits. If the trial court again denies the motion, it must either hold an evidentiary hearing or attach portions of the record that conclusively refute Mendes' allegations.
GUNTHER, SHAHOOD and HAZOURI, JJ., concur.