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Galindez v. State

District Court of Appeal of Florida, Second District
Sep 2, 2005
909 So. 2d 597 (Fla. Dist. Ct. App. 2005)

Summary

stating "that the triggering event for the two-year period in which to file a rule 3.850 motion is not the date of the judgment in the criminal proceeding in which the prisoner pleaded, but the date on which the [Department of Corrections] informed the prisoner of the gain time forfeiture and that the DOC determination of gain time constituted newly discovered information within the meaning of rule 3.850(b)"

Summary of this case from Chandler v. State

Opinion

No. 2D04-5794.

September 2, 2005.

Appeal from the Circuit Court, Hillsborough County, Daniel Lee Perry, J.


Heriberto Galindez seeks review of an order denying as untimely his motion under Florida Rule of Criminal Procedure 3.850. In the motion, Galindez claims he received ineffective assistance of counsel with respect to a plea resulting in a judgment dated November 16, 2001. The circuit court ruled that the motion was untimely because it was not filed within two years from December 15, 2001, the date the judgment became final. We reverse.

In the motion, Galindez alleges that his counsel failed to inform him that despite inclusion in the judgment of a provision concerning gain time, the Department of Corrections (DOC) could forfeit gain time based on his violation of probation. See § 944.28, Fla. Stat. (2004). Galindez attached to his motion his request to DOC for a computation of his sentence including gain time and the DOC's response, which was dated April 23, 2002. The order of the circuit court denying Galindez's rule 3.850 motion states that the motion was filed on April 5, 2004.

Under virtually identical circumstances, this court has twice held that the triggering event for the two-year period in which to file a rule 3.850 motion is not the date of the judgment in the criminal proceeding in which the prisoner pleaded, but the date on which the DOC informed the prisoner of the gain time forfeiture and that the DOC determination of gain time constituted newly discovered information within the meaning of rule 3.850(b)(1). Hall v. State, 891 So.2d 1066 (Fla. 2d DCA 2004); Spradley v. State, 868 So.2d 632 (Fla. 2d DCA 2004). Galindez's motion was filed on April 5, 2004, within two years of April 23, 2002, the undisputed date that DOC informed him of his gain time forfeiture. The motion is timely.

Accordingly, we reverse the order of the circuit court and remand the matter for consideration of Galindez's motion.

Reversed and remanded.

FULMER, C.J., and KELLY and VILLANTI, JJ., Concur.


Summaries of

Galindez v. State

District Court of Appeal of Florida, Second District
Sep 2, 2005
909 So. 2d 597 (Fla. Dist. Ct. App. 2005)

stating "that the triggering event for the two-year period in which to file a rule 3.850 motion is not the date of the judgment in the criminal proceeding in which the prisoner pleaded, but the date on which the [Department of Corrections] informed the prisoner of the gain time forfeiture and that the DOC determination of gain time constituted newly discovered information within the meaning of rule 3.850(b)"

Summary of this case from Chandler v. State

stating "that the triggering event for the two-year period in which to file a rule 3.850 motion is not the date of the judgment in the criminal proceeding in which the prisoner pleaded, but the date on which the [Department of Corrections] informed the prisoner of the gain time forfeiture and that the DOC determination of gain time constituted newly discovered information within the meaning of rule 3.850(b)"

Summary of this case from Singleton v. State

reviewing prisoner's claim of ineffective assistance of counsel due to counsel's failure to adequately inform him that the DOC could forfeit his earned gain time based on a violation of probation

Summary of this case from Beasley v. State
Case details for

Galindez v. State

Case Details

Full title:Heriberto GALINDEZ, Appellant, v. STATE of Florida, Appellee

Court:District Court of Appeal of Florida, Second District

Date published: Sep 2, 2005

Citations

909 So. 2d 597 (Fla. Dist. Ct. App. 2005)

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