HENDERSON v. STATE (2014)

John Fitzgerald HENDERSON, Appellant, v. STATE of Florida, Appellee.

No. 5D14–1479.

Decided: October 24, 2014

John F. Henderson, Sr., Milton, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.

Appellant, John Fitzgerald Henderson, appeals the order denying his motion for postconviction relief in Orange County case number 2004–CF–12588–A. The order being appealed was rendered on April 4, 2014, and the Notice of Appeal was filed pursuant to the mailbox rule on April 21, 2014; the appeal is therefore timely. Based on the fact that the trial court incorrectly determined Appellant's postconviction motion was untimely and the State's concession of error, reversal is required. However, reversal is warranted only for consideration of those claims collaterally attacking Appellant's 2008 violation of probation case. Any claims related to the original 2005 trial were correctly denied as procedurally barred. Moreover, the claim alleging newly discovered evidence was also properly denied.

Accordingly, we reverse that part of the order relating to the 2008 violation of probation case and remand this case to the trial court to properly consider claims relating to that case. Otherwise, the order is affirmed.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

PER CURIAM.

SAWAYA, LAWSON, and COHEN, JJ., concur.

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