Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-103 _____________________________ ANDREW ANTWAIN CAVE JR., Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Bruce Anderson, Judge. January 27, 2020 BILBREY, J. Andrew Antwain Cave, Jr., appeals the order denying his motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. The order denying relief was predicated on the trial court’s determination that the motion was not filed within the two-year limitations period set forth in rule 3.850(b). We reverse and remand for further proceedings. Appellant was sentenced in four cases pursuant to guilty pleas. The written final orders of judgment and sentence were filed below on February 12, 2016. On March 10, 2016, Appellant filed a motion to withdraw his pleas. The trial court treated the motion as seeking relief pursuant to Florida Rule of Criminal Procedure 3.170(l) and denied it on July 28, 2016. Appellant timely filed an appeal, and his judgments and sentences were affirmed. Cave v. State, 253 So. 3d 1077 (Fla. 1st DCA 2018) (table). This court issued its mandate on June 29, 2018. On August 20, 2018, Appellant filed a postconviction motion pursuant to rule 3.850. The trial court denied relief as time-barred, and this appeal followed. The order denying relief noted that Appellant did not directly appeal his judgment and sentence. The trial court concluded, however, that Appellant’s motion challenging his plea had the effect of delaying finality of the judgments and sentences until rendition of a written order disposing of the motion, which occurred on July 29, 2016.1 See Fla. R. App. P. 9.020(h)(1)(I). The trial court noted that the order denying Appellant’s motion to withdraw plea was affirmed on appeal and noted that this court’s mandate issued on June 27, 2018. 2 The trial court explained that the rule 3.850 motion was untimely because the two-year period to seek relief began to run on July 29, 2016, when the judgments and sentences became final. A motion for postconviction relief filed pursuant to rule 3.850 that does not allege that the sentence exceeds the limits provided by law must be filed within two years after the judgment and sentence become final unless an exception to this limitation period applies. For purposes of this rule, the two-year period begins to run when appellate proceedings have concluded and the court issues a mandate, or, if no appellate proceedings are initiated, thirty days after the judgment and sentence become final. Saavedra v. State, 59 So. 3d 191 (Fla. 3d DCA 2011); Jones v. State, 602 So. 2d 606 (Fla. 1st DCA 1992). Although the trial court recognized Appellant’s appeal from the denial of his motion to withdraw plea, because the motion suspended rendition, that appeal necessarily sought review of the underlying judgments and sentences. See Fla. R. App. P. 9.130(a)(4). Consequently, the time to seek postconviction relief did not begin to run until the earlier 1 The written order denying the motion to withdraw the plea was actually filed below on July 28, 2016. 2 Our mandate actually issued June 29, 2018. 2 appeal concluded, which occurred on June 29, 2018. Appellant’s motion for postconviction relief filed August 20, 2018, is therefore within the two-year period allowed by rule 3.850(b). Accordingly, the order denying Appellant’s motion for postconviction relief is REVERSED and REMANDED for consideration of the merits of the allegations. MAKAR and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andrew Antwain Cave Jr., pro se, Appellant. Ashley Moody, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee. 3