Opinion
No. 89-2734.
July 11, 1990. Rehearing Denied August 23, 1990.
Appeal from the Circuit Court, Broward County, Russell E. Seay, Jr., J.
Anthony Caracciolo, Miami, pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn Asbury, Asst. Atty. Gen., West Palm Beach, for appellee.
ON REHEARING
Appellant seeks review of a denial of his rule 3.850 motion below. This court on December 6, 1989, had per curiam affirmed the trial court's denial of appellant's motion on the basis that the motion was untimely filed. In his motion for rehearing, appellant called to our attention the authority of Gust v. State, 535 So.2d 642 (Fla. 1st DCA 1988). Gust appears to be the only authority in Florida on this point, and supports appellant's position that even though he pled guilty and waived his right to appeal, he may still file a rule 3.850 motion within two years from the date of sentencing, plus thirty days for appeal. Based on appellant's argument, rehearing was granted and we have now considered the matter on the merits.
Having determined that the appellant has failed to demonstrate any error on the part of the trial court in denying his 3.850 motion, appellant's convictions and sentences are, therefore, affirmed.
LETTS, WALDEN and POLEN, JJ., concur.