Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CARLOS JAVIER BARCO, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-2289 August 18, 2021 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Michelle Sisco, Judge. Carlos Javier Barco, pro se. CASANUEVA, Judge. Carlos Javier Barco seeks review of an order summarily denying with prejudice his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the record does not conclusively establish that the motion was untimely, we reverse and remand for further proceedings. Mr. Barco entered a negotiated guilty plea to unauthorized possession of a driver's license; possession of cocaine; possession of drug paraphernalia; driving with license canceled, suspended, or revoked (second offense); and reckless driving. He was sentenced to a total of eighteen months' probation. The judgment and sentence were filed on June 7, 2017, and the order of probation was filed on June 27, 2017. An amended judgment was filed on August 14, 2017, to reflect that count five was reduced to reckless driving, not DUI as stated in the original judgment. Mr. Barco did not file a direct appeal. On August 13, 2019, Mr. Barco filed a motion for postconviction relief raising two grounds for relief,1 and he filed an "addendum to supplement" the motion on October 11, 2019. On November 19, 2019, the postconviction court entered an order 1 Mr. Barco titled the motion "Amended Motion for 3.850 Post- Conviction Relief to Mitigate, Set Aside and / or Reduce, Modify, Plea, Judgment and Sentence." Our record does not indicate that a prior motion was filed or explain why this motion is identified as amended. 2 summarily denying with prejudice Mr. Barco's motion and addendum. The court found that the motion and addendum lacked the oath required by rule 3.850(c). The court noted that it would normally dismiss the motion without prejudice to Mr. Barco filing a properly sworn motion, but the court declined to do so because it found the motion to be untimely under rule 3.850(b). The court further found that the "allegations d[id] not meet any of the exceptions to the two year time limitation," despite the fact that Mr. Barco asserted a claim of newly discovered evidence. Mr. Barco appeals the order denying his motion with prejudice. "To uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record." Peede v. State, 748 So. 2d 253, 257 (Fla. 1999) (citing Fla. R. Crim. P. 3.850(d)). The motion must be filed within two years after the judgment and sentence become final, unless an exception applies. Fla. R. Crim. P. 3.850(b); Huff v. State, 569 So. 2d 1247, 1250 (Fla. 1990). Here, Mr. Barco did not appeal his judgment and sentence. Thus, the judgment and sentence became final thirty days from the date the judgment and sentence were rendered. See Radford v. 3 State, 713 So. 2d 1068, 1068 (Fla. 2d DCA 1998) ("[F]inality of the judgment and sentence, however, does not occur until the expiration of the thirty days allowed criminal defendants to file a notice of appeal therefrom."). The postconviction court found that Mr. Barco "[wa]s attacking the May 31, 2017, judgment and sentence"; thus, the court determined that the time for appeal expired July 1, 2017, and the time for filing his postconviction motion expired on July 1, 2019, pursuant to rule 3.850(b). Because the motion for postconviction has a filing date of August 13, 2019, with an addendum filed October 11, 2019, the court concluded that the motion was untimely. However, the attachments to the court's order raise several doubts as to this conclusion. "An order is rendered when a signed, written order is filed with the clerk of the lower tribunal." Fla. R. App. P. 9.020(h). Here, the original judgment and sentence were signed on May 31, 2017, but filed on June 7, 2017, with an order of probation filed June 27, 2017. Further, attached to the postconviction court's order is an amended judgment entered on August 14, 2017, amended as to count five to reflect a reduced charge of reckless driving rather than 4 driving under the influence. We can locate no document attached to the order that explains how this amendment came about. Therefore, we cannot determine whether the judgment was amended pursuant to a motion that tolled rendition, which would start the two-year filing deadline on September 13, 2017. See Fla. R. App. P. 9.020(h)(1), (2) (discussing motions that toll rendition). Furthermore, while Mr. Barco's motion for postconviction relief has a filing date of August 13, 2019, the certificate of service states that it was put in the hands of the correctional institution for mailing on July 27, 2019. Because Mr. Barco filed his motion as a pro se inmate, the court should have taken this mailing date into consideration when calculating the two-year filing deadline. See Fla. R. App. P. 9.420(a)(2); see also White v. State, 298 So. 3d 694, 695 (Fla. 2d DCA 2020) ("Under the mailbox rule, a notice is deemed filed when it is delivered to prison authorities for mailing." (quoting Griffin v. Sistuenck, 816 So. 2d 600, 601 (Fla. 2002))). In light of these inconsistencies and errors, we cannot determine from the record whether the motion was untimely. See Iriarte v. State, 119 So. 3d 528, 528 (Fla. 2d DCA 2013) ("Because the court failed to further address Iriarte's motion to withdraw plea 5 or attach any order disposing of it—such as an order demonstrating that the motion had been voluntarily dismissed—the date his judgment and sentence became final cannot be determined from the record, and the timeliness of his current rule 3.850 motion remains unclear."). We therefore reverse the order and remand for the postconviction court to reevaluate the timeliness of Mr. Barco's motion and either attach portions of the record establishing the untimeliness of the motion or allow Mr. Barco to file a properly sworn motion, for consideration on the merits.2 2 For the purpose of guidance on remand, we note that the postconviction court did not address Mr. Barco's argument of newly discovered evidence except to say that it found Mr. Barco's "allegations d[id] not meet any of the exceptions to the two year time limitation." Admittedly, Mr. Barco's newly discovered evidence argument is mostly conclusory, stating that he did not know and could not have known of the seriousness of the deportation consequences of his plea until he consulted with an immigration attorney while in detention. However, "when a defendant's initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule's or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion." Spera v. State, 971 So. 2d 754, 761 (Fla. 2007). Spera has been applied to claims of newly discovered evidence. Batista v. State, 288 So. 3d 85, 85 (Fla. 4th DCA 2020). And while courts may deny relief without an opportunity to amend when the record conclusively refutes the allegations, the order here does not even attempt to address the merits of the newly discovered evidence claim. Cf. Taylor v. State, 120 So. 3d 540, 551 (Fla. 2013) (noting 6 Reversed and remanded for further proceedings consistent with this opinion. VILLANTI and ATKINSON, JJ., Concur. Opinion subject to revision prior to official publication. that, where the record conclusively refutes the claim, Spera does not apply). 7