IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
THOMAS HARRIS,
Appellant,
v. Case No. 5D16-375
STATE OF FLORIDA,
Appellee.
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Opinion filed June 3, 2016
3.850 Appeal from the Circuit
Court for Orange County,
Renee A. Roche, Judge.
Tanya M. Dugree, of
Tanya M. Dugree, P.A.,Tampa,
for Appellant.
No Appearance for Appellee.
EVANDER, J.
Thomas Harris appeals the summary denial of his motion for post-conviction relief
filed pursuant to Florida Rule of Criminal Procedure 3.850. We conclude that the trial
court erred in finding one of Harris’ claims to be untimely, but otherwise affirm.
After a jury trial, Harris was convicted in January 2010 of first-degree murder with
a firearm and attempted robbery with a firearm. This Court affirmed his judgment and
sentence in Harris v. State, 65 So. 3d 143 (Fla. 5th DCA 2011), and the mandate was
issued on August 1, 2011.
On July 10, 2013, Harris filed his amended motion for post-conviction relief, adding
a newly discovered evidence claim. Specifically, Harris alleged that a previously unknown
witness, Jason Vargas, had come forward after the trial and would testify that it was
Carlos Patterson, not Harris, who was involved in the shooting and attempted robbery of
the victim, and that Harris was not at the scene at the time of the shooting. Vargas’
affidavit, dated August 26, 2010, was attached to the amended motion.
The trial court accepted the State’s argument that the claim was untimely because
the amended motion for post-conviction relief was filed more than two years after the date
of Vargas’ affidavit. We respectfully disagree with the trial court’s conclusion.
Florida Rule of Criminal Procedure 3.850(b) provides:
(b) Time Limitations. A motion to vacate a sentence that
exceeds the limits provided by law may be filed at any time.
No other motion shall be filed or considered pursuant to this
rule if filed more than 2 years after the judgment and sentence
become final unless it alleges that
(1) the facts on which the claim is predicated were unknown
to the movant or the movant’s attorney and could not have
been ascertained by the exercise of due diligence, and the
claim is made within 2 years of the time the new facts were or
could have been discovered with the exercise of due
diligence, or
(2) the fundamental constitutional right asserted was not
established within the period provided for herein and has been
held to apply retroactively, and the claim is made within 2
years of the date of the mandate of the decision announcing
the retroactivity, or
(3) the defendant retained counsel to timely file a 3.850
motion and counsel, through neglect, failed to file the motion.
A claim based on this exception shall not be filed more than 2
2
years after the expiration of the time for filing a motion for
postconviction relief.
Here, it is undisputed that Harris’ amended motion was filed within two years after the
judgment and sentence became final. Accordingly, the motion was timely. The exceptions
set forth in subsections (b)(1), (2), and (3) serve, in the circumstances enumerated
therein, to extend the two year time period set forth in the rule; they do not reduce that
time period.
The State’s proposed interpretation of the rule could preclude a defendant from
pursuing an otherwise valid post-conviction claim under rule 3.850 even where the motion
for post-conviction relief was filed the day after the judgment and sentence became final.
Consider, for example, if Harris’ judgment and sentence had not become final until August
27, 2012. Under the State’s argument, Harris would have been unable to seek relief on
the instant claim because any motion filed would have been more than two years after
the date of Vargas’ affidavit.
On remand, the trial court is directed to address this newly discovered evidence
claim.
AFFIRMED, in part; REVERSED, in part; REMANDED.
LAMBERT and EDWARDS, JJ., concur.
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