          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D17-4071
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BEN LAMONT DENSON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Madison County.
Andrew J. Decker, III, Judge.

                         January 10, 2019


PER CURIAM.

     Ben Lamont Denson’s motion for postconviction relief was
denied as untimely. Denson then sought relief under rule
3.850(b)(3), which excuses late filings if “the defendant retained
counsel to timely file a 3.850 motion and counsel, through neglect,
failed to file the motion.” The trial court rejected Denson’s claim,
concluding the rule’s exception was inapplicable. Denson now
appeals.

    The issue below was whether Denson had, in fact, “retained
counsel to timely file a 3.850 motion.” He had retained Luke
Newman as counsel, but there was a factual dispute about the
scope of the representation. Denson testified that his counsel
agreed to file a 3.850 motion. His counsel testified that he agreed
to explore potential 3.850 claims but never agreed to—and was
never paid to—actually file the motion. Instead, counsel testified,
he notified Denson that he was closing the file with no further
action.

      Faced with competing versions of events, the trial court found
counsel’s testimony credible and concluded that counsel was not
retained to file a motion. We review that finding only to determine
if it was supported by competent, substantial evidence, see Porter
v. State, 788 So. 2d 917, 923 (Fla. 2001), and it was. Accordingly,
rule 3.850(b)(3) does not apply, and Denson’s motion was properly
denied.

    AFFIRMED.

B.L. THOMAS, C.J., and RAY and WINSOR, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Ben Lamont Denson, pro se, Appellant.

Ashley Brooke Moody, Attorney General, and Steven Edward
Woods, Assistant Attorney General, Tallahassee, for Appellee.




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