              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT



APOLLO HARDIN,                      )
                                    )
           Appellant,               )
                                    )
v.                                  )                 Case No. 2D15-3319
                                    )
STATE OF FLORIDA,                   )
                                    )
           Appellee.                )
___________________________________ )

Opinion filed March 16, 2016.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Pinellas County; Philip J. Federico, Judge.

Apollo Hardin, pro se.


LUCAS, Judge.

             Apollo Hardin appeals the dismissal of his postconviction motion filed

under Florida Rule of Criminal Procedure 3.850. We reverse and remand for the court

to reconsider Mr. Hardin's motion.

             In 2009, Mr. Hardin pleaded guilty to one count of armed burglary, three

counts of burglary, and one count of scheming to defraud. The trial court sentenced

him to life imprisonment. He filed a direct appeal from his judgment and sentences,
which this court affirmed in 2012. Mr. Hardin then filed a timely petition for certiorari

with the United States Supreme Court, which was denied on April 15, 2013.

              When Mr. Hardin filed his rule 3.850 motion on April 15, 2015, the

postconviction court dismissed it as untimely because it had been filed more than two

years after the mandate issued on his direct appeal. Although Mr. Hardin argued in a

motion for rehearing that his rule 3.850 motion was timely, the postconviction court

found that he abandoned his motion for rehearing by filing a notice of appeal on July 1,

2015, which, the postconviction court believed, divested it of its jurisdiction. We reverse

because Mr. Hardin filed a timely motion for postconviction relief following the denial of

his certiorari petition with the United States Supreme Court.

              A motion for postconviction relief must be filed within two years of the date

on which the judgment and sentence become final. Fla. R. Crim. P. 3.850(b). However,

when a defendant files a petition for writ of certiorari with the United States Supreme

Court, this two-year deadline commences when the Supreme Court denies the review of

the petition. See Huff v. State, 569 So. 2d 1247, 1250 (Fla. 1990); Davis v. State, 953

So. 2d 612, 613 (Fla. 2d DCA 2007). As such, Mr. Hardin's time to file a motion under

rule 3.850 expired on April 15, 2015. His motion—filed exactly two years after the

denial of his certiorari petition—was, therefore, timely.

              Additionally, we note that the postconviction court improperly denied Mr.

Hardin's motion for rehearing when it deemed the motion "abandoned" by his filing of a

notice of appeal. Following the 2015 amendments to the Florida Rules of Appellate




                                            -2-
Procedure,1 if a party files an authorized and timely motion for rehearing but also files a

notice of appeal before the postconviction court rules on the motion, the "appeal shall

be held in abeyance until the filing of a signed, written order disposing of the last such

motion." See Fla. R. App. P. 9.020(i)(3). The postconviction court had jurisdiction to

rule on Mr. Hardin's motion for rehearing and, at that juncture, should have recognized

that his rule 3.850 motion was timely. See Huff, 569 So. 2d at 1250; Davis, 953 So. 2d

at 613.

              Accordingly, we reverse and remand for the postconviction court to

reconsider Mr. Hardin's rule 3.850 motion.

              Reversed and remanded with directions.



LaROSE and BADALAMENTI, JJ., Concur.




              1
             In re Amendments to the Florida Rules of Appellate Procedure, 39 Fla. L.
Weekly S665 (Fla. Nov. 6, 2014) (effective Jan. 1, 2015).
                                             -3-
