       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                             KARII L. IVORY,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D14-3054

                           [February 11, 2015]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Nineteenth Judicial Circuit, Martin County; Elizabeth A. Metzger,
Judge; L.T. Case No. 4320081348CFA.

   Karii L. Ivory, Daytona Beach, pro se.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   We affirm the trial court’s order that summarily denied appellant’s rule
3.850 motion with prejudice. We conclude that the court had discretion
to deny the motion in these circumstances as appellant did not timely file
an amended motion within the time prescribed by the rule.

  On November 26, 2013, the trial court dismissed appellant’s first 3.850
motion as facially insufficient pursuant to the procedure first set forth in
Spera v. State, 971 So. 2d 754 (Fla. 2007), and recently codified in Florida
Rule of Criminal Procedure 3.850(f)(2). The rule provides:

          (2) Timely but Insufficient Motions. If the motion is
      insufficient on its face, and the motion is timely filed under
      this rule, the court shall enter a nonfinal, nonappealable order
      allowing the defendant 60 days to amend the motion. If the
      amended motion is still insufficient or if the defendant fails to
      file an amended motion within the time allowed for such
      amendment, the court, in its discretion, may permit the
      defendant an additional opportunity to amend the motion or
      may enter a final, appealable order summarily denying the
      motion with prejudice.

Fla. R. Crim. P. 3.850(f)(2) (emphasis added). Appellant failed to file a
motion within the 60 days allowed for amendment.

     On May 6, 2014, appellant filed another rule 3.850 motion. The
motion was filed within two years of his conviction and sentence becoming
final following this Court’s affirmance on direct appeal. See Ivory v. State,
86 So. 3d 1135 (Fla. 4th DCA 2012) (table) (mandate issued May 18, 2012).
The trial court summarily denied this motion explaining that the motion
was not filed within the 60 days allowed by the November 26, 2013 order.
As noted by the court, the motion was served 161 days after the court’s
order. The court determined that it had discretion to deny the motion with
prejudice under these circumstances. We agree.

    The recent amendments to postconviction relief procedures address
the situation presented here. See In re Amendments to the Fla. Rules of
Criminal Procedure & the Fla. Rules of Appellate Procedure, 132 So. 3d 734,
738 (Fla. 2013) (effective July 1, 2013). The amended rule provides:

           (e) Amendments to Motion. When the court has entered
      an order under subdivision (f)(2) or (f)(3), granting the defendant
      an opportunity to amend the motion, any amendment to the
      motion must be served within 60 days. A motion may otherwise
      be amended at any time prior to either the entry of an order
      disposing of the motion or the entry of an order pursuant to
      subdivision (f)(5) or directing that an answer to the motion be
      filed pursuant to (f)(6), whichever occurs first. Leave of court
      is required for the filing of an amendment after the entry of an
      order pursuant to subdivision (f)(5) or (f)(6). Notwithstanding
      the timeliness of an amendment, the court need not consider
      new factual assertions contained in an amendment unless the
      amendment is under oath. New claims for relief contained in
      an amendment need not be considered by the court unless the
      amendment is filed within the time frame specified in
      subdivision (b).

Fla. R. Crim. P. 3.850(e) (emphasis added). The rule unambiguously
requires that any amendment be served within 60 days in this situation.

    Appellant relies on caselaw pre-dating the amendments to rule 3.850
and argues that he could file an amended motion at any time before
expiration of the two-year time limit as long as the court has not entered

                                      2
a ruling on the merits of his motion. Appellant’s argument is contrary to
the plain language of the rule. The caselaw he relies upon has been
overruled by the procedures in the amended rule which now govern the
specific situation presented here. Appellant did not seek an extension of
the 60-day time limit nor has he argued any circumstances that prevented
him from timely complying with the trial court’s order. The trial court did
not abuse its discretion in denying the motion with prejudice in these
circumstances.

   Affirmed.

TAYLOR, CIKLIN and CONNER, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




                                    3
