BRAY III v. STATE (1997)

District Court of Appeal of Florida,First District.

Charles W. BRAY, III, Appellant, v. STATE of Florida, Appellee.

No. 97-2315.

Decided: December 15, 1997

Charles W. Bray, III, Appellant, pro se. Trisha E. Meggs, Assistant Attorney General, Tallahassee, for Appellee.

Charles W. Bray, III appeals an order dismissing his 3.850 motion as untimely. We reverse and remand for further proceedings.

Although the record shows that Bray's motion was received by the clerk of court on March 18, 1997, the record also contains two documents attesting to an earlier timely filing of the motion, i.e., that Bray submitted the original 3.850 motion to prison officials for mailing on December 27, 1994. If Bray's assertion is correct, his postconviction motion was timely filed in accordance with the mailbox rule articulated in Haag v. State, 591 So.2d 614 (Fla.1992). The State concedes, correctly so, that an evidentiary hearing is necessary if this court finds that Bray's allegation of timely submission is sufficient.

Because there is a factual issue presented, we reverse and remand with directions to the trial court to conduct an evidentiary hearing to determine whether Bray timely filed the motion.

REVERSED and REMANDED, with directions.

PER CURIAM.

ALLEN, WEBSTER and DAVIS, JJ., concur.

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