        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


JUSTIN CORDERO MILLAN,

             Appellant,

 v.                                                    Case No. 5D17-2136

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed May 11, 2018

3.850 Appeal from the Circuit Court
for Orange County,
A. James Craner, Judge.

Kenneth C. Gallagher, Orlando,
for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Douglas T. Squire,
Assistant Attorney General, Daytona
Beach, for Appellee.


PER CURIAM.

      Appellant, Justin Millan, seeks review of the trial court’s “Order Granting ‘Motion

for Reconsideration and/or Rehearing’ and Order Denying Defendant’s ‘Motion for Post-

Conviction Relief’ and Order Denying ‘Second Amended Motion for Post-Conviction

Relief Pursuant to Florida Rule of Criminal Procedure 3.850.’” We reverse, in part,
because Millan was effectively denied the opportunity to amend certain postconviction

claims as a result of his attorney filing a motion in the wrong case.

         In case number 2008-CF-8067, Millan pled to one count of lewd and lascivious

battery. Pursuant to his plea agreement, Millan was placed on sex offender probation for

six years as a Youthful Offender. He was later charged with violating his probation by

committing new law violations (several lewd and lascivious batteries). After an evidentiary

hearing, the trial court found that Millan had violated his probation and sentenced Millan

to fifteen years in prison. This court affirmed the trial court’s finding that Millan had

violated his probation, but reversed and remanded Millan’s sentence so that it could be

amended to reflect that Millan was sentenced as a Youthful Offender. See Millan v. State,

135 So. 3d 382 (Fla. 5th DCA 2014).

         The State also charged Millan in a separate case, 2012-CF-1984, with three counts

of lewd and lascivious battery. These charges arose from allegations that had also been

the basis for some of the new law violations found to have been committed by Millan in

his violation of probation case. After a jury trial, Millan was convicted on all three counts

and sentenced to concurrent terms of fifteen years’ incarceration, with said sentences

running consecutive to his sentence in 2008-CF-8067. These convictions and sentences

were per curiam affirmed by this court. See Millan v. State, 145 So. 3d 862 (Fla. 5th DCA

2014).

         Millan, through postconviction counsel, timely filed his initial Florida Rule of

Criminal Procedure 3.850 motion in case number 2008-CF-8067.                By order dated

February 14, 2017, the trial court struck postconviction claims 2, 3, 4(a), and 4(b), as

facially insufficient. The trial court provided Millan sixty days in which to file an amended




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motion. Having received no amended motion within the sixty-day window, the trial court

proceeded to address the merits of Millan’s remaining claims (claims 1 and 4(c)).

       In May 2017, Millan’s postconviction counsel filed a motion for reconsideration

and/or rehearing, asserting that because of a calendaring error, counsel had failed to file

a timely amended postconviction motion. Millan’s counsel then filed a “Second Amended

Motion for Post-Conviction Relief.”     The trial court agreed to consider the “Second

Amended Motion for Post-Conviction Relief,” after stating “the Court will hear the untimely

“Second Amended Motion for Post-Conviction Relief . . . in fairness to Defendant as the

untimeliness was through no fault of Defendant.” The trial court proceeded to deny the

claims set forth in the Second Amended Motion for Post-Conviction Relief because the

claims related to events occurring in case number 2012-CF-1984.

       It is evident from the record that counsel misfiled the “Second Amended Motion for

Post-Conviction Relief.” Although the 2008-CF-8067 case number had been affixed to

the motion, the factual recitations in the motion referenced matters occurring in case

number 2012-CF-1984. As a result of counsel’s errors, a motion amending claims 2, 3,

4(a), and 4(b) of the initial postconviction motion filed in case number 2008-CF-8067 has

yet to be filed. On remand, the trial court is to afford Millan an additional thirty days in

which to file an amended motion for postconviction relief as to claims 2, 3, 4(a) and 4(b).

We affirm the trial court’s order denying claims 1 and 4(c) of the initial motion for

postconviction relief.

       AFFIRMED, in part; REVERSED, in part; and REMANDED.




SAWAYA, TORPY and EVANDER, JJ., concur.



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