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

                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT

KARL KERR, JR.,                    )
                                   )
           Appellant,              )
                                   )
v.                                 )                              Case No. 2D14-1256
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed September 12, 2014.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Polk County; Roger A. Alcott, Judge.

Karl Kerr, Jr., pro se.


PER CURIAM.


              Karl Kerr Jr. filed timely motions for postconviction relief under Florida

Rule of Criminal Procedure 3.850 in two circuit court cases, numbers 2010-CF-8438

and 2011-CF-1183, on approximately August 16, 2013. The motion in case number

2011-CF-1183 was denied on the merits, and we affirm without comment the

postconviction court's orders directed to this motion. However, the motion in case

number 2010-CF-8438 was dismissed as untimely and successive. Because the

motion appears to have been timely filed under the mailbox rule, we reverse and

remand for the postconviction court to reconsider the motion.
              The motion filed in case number 2010-CF-8438 was dismissed twice for

facial insufficiency. The second dismissal order found Kerr's claim that his counsel was

ineffective for waiving his speedy trial rights was facially insufficient and gave him thirty

days from September 18, 2013, to amend the claim. Kerr then filed an amended

motion, although it was not titled as such. This amended motion arrived for filing in the

circuit court on November 27, 2013. However, the certificate of service and a

corrections facility date stamp on the motion reflect that it was filed on September 27,

2013. The postconviction court, without addressing the timeliness of this motion,

ordered the State to respond to the claim of ineffective assistance of counsel regarding

Kerr's speedy trial rights.

              Citing the circuit court filing date of November 27, 2013, the State

responded that the amended motion was untimely filed beyond the court-ordered time

limit and beyond the two-year filing period of rule 3.850, which expired on September

13, 2013. In addition, the State noted that after the order to show cause was issued,

Kerr attempted to amend his motion again but the postconviction court denied the

motion to amend on the ground that it had already issued an order to show cause to the

State. The State concluded that the first amended motion was untimely and that the

claim of ineffective assistance of counsel regarding Kerr's speedy trial waiver was

otherwise successive. The postconviction court adopted the State's position without

further elaboration in its final order denying the motion. Neither the postconviction court

nor the State addressed the inconsistency between the date on the certificate of service

and the actual filing date of the amended motion.




                                             -2-
             Under the prisoner mailbox rule, the timeliness of Kerr's pleading should

be measured from the date he placed the document in the hands of prison officials for

mailing. See Scullock v. Gee, 133 So. 3d 1208, 1209 (Fla. 2d DCA 2014) (citing Haag

v. State, 591 So. 2d 614 (Fla. 1992)). The date on the certificate of service creates a

rebuttable presumption that the motion was actually placed in an official's hands on that

date. Id. (citing Thompson v. State, 761 So. 2d 324, 325 (Fla. 2000)). Absent evidence

from the State to rebut the presumption, Kerr's amended motion should be deemed

timely and the postconviction court should address it on the merits. Accordingly, we

reverse the portion of the postconviction court's order directed to case number 2010-

CF-8438 and remand for reconsideration.

             Affirmed in part; reversed in part; remanded.



NORTHCUTT, MORRIS, and BLACK, JJ., Concur.




                                           -3-
