Opinion
No. 4D11–871.
2013-02-13
Joshua BONILLA, Appellant, v. STATE of Florida, Appellee.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Karen M. Miller, Judge; L.T. Case No.2005CF007409AXX. Joshua Bonilla, Crestview, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Karen M. Miller, Judge; L.T. Case No.2005CF007409AXX.
Joshua Bonilla, Crestview, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
We affirm the trial court's denial of Joshua Bonilla's April 2008 motion filed in accordance with Florida Rule of Criminal Procedure 3.850. We remand for the trial court to consider and rule on Bonilla's timely filed supplemental motion. Bonilla timely turned over the supplemental motion to prison officials for mailing before the two-year time period of rule 3.850 expired, and before the trial court ruled on the initial motion. See Thompson v. State, 761 So.2d 324, 326 (Fla.2000); Gaskin v. State, 737 So.2d 509, 517–18 (Fla.1999) ( receded from on other grounds, Nelson v. State, 875 So.2d 579 (Fla.2004)). We recognize that the supplemental motion may not have been received by the trial court prior to it ruling on the initial motion. However, Bonilla moved for rehearing, noting his timely supplemental motion and furnishing a copy for review.
On remand, the post-conviction court must determine whether Bonilla's claims are facially sufficient and, if so, must either attach portions of the record to its order demonstrating that Bonilla is not entitled to relief or conduct an evidentiary hearing.
Affirmed in part, reversed in part, and remanded.