         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.

________________________________/

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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