         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


ELIUD MARTIR MONTALVO,

              Appellant,

 v.                                                     Case No. 5D17-39

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed June 23, 2017

3.850 Appeal from the Circuit Court
for Orange County,
Christi L. Underwood, Judge.

Eliud Martir Montalvo, Milton, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kristen L. Davenport,
Assistant Attorney General, Daytona
Beach, for Appellee.

PER CURIAM.

       Eliud Martir Montalvo appeals the summary denial of his motion for postconviction

relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court

erroneously denied Montalvo’s timely filed amended motion, we reverse and remand.

       Montalvo filed a timely rule 3.850 motion asserting numerous claims. The trial

court struck the motion, giving him leave to amend within sixty days, because he failed to

allege how he was prejudiced. Montalvo timely moved for an extension of time to file his
amended motion. The trial court granted the motion and gave Montalvo until September

12, 2016, to file his amended motion. Pursuant to the mailbox rule in Florida Rule of

Appellate Procedure 9.420, as evidenced by the prison mail stamp, Montalvo filed his

amended postconviction motion on July 29, 2016. However, for reasons not apparent

from the record, the motion was not docketed by the clerk of court until December 8, 2016.

That same day, apparently unaware that an amended motion had been filed, the trial

court entered an order denying the original motion, concluding that Montalvo had “failed

to amend his motion for postconviction relief.”

       Based on the prison mail stamp, the amended motion was timely. Therefore, we

reverse and remand for the trial court to consider the timely filed amended rule 3.850

motion.

       REVERSED and REMANDED.

COHEN, C.J., ORFINGER and EDWARDS, JJ., concur.




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