COX v. STATE (2020)

John Cox appeals the nonsummary denial of two claims for relief raised in his Florida Rule of Criminal Procedure 3.850 motion. We do not reach the merits, however, because the postconviction court erroneously dismissed Cox's motion for rehearing as untimely.

Rule 3.850(j) provides that “[a]ny party may file a motion for rehearing of any order addressing a motion under this rule within 15 days of the date of service of the order.” Cox, who is incarcerated, did not file his motion for rehearing pursuant to the mailbox rule until August 27, 2017, seventeen days after the order denying his rule 3.850 motion was served on August 10. The postconviction court therefore dismissed Cox's motion for rehearing as untimely.

However, because the order denying Cox's rule 3.850 motion was served by mail, Cox was allowed an additional three days to file his motion for rehearing. See Fla. R. Crim. P. 3.070 (2017) (“Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other document on the party and the notice or document is served on the party by mail, when permitted, or email, 3 days shall be added to the prescribed period.”) (repealed, effective Jan. 1, 2019); see Batson v. State, 99 So. 3d 626, 627 (Fla. 2d DCA 2012) (“Because the order dismissing Mr. Batson's motion for postconviction relief was served by mail, Mr. Batson was entitled to three extra days—or a total of eighteen days from the date of the order—to file his motion for rehearing. Because the motion was filed on the sixteenth day from service of the postconviction court's order dismissing Batson's postconviction motion, the motion for rehearing was timely.” (citations omitted)); cf. McAffee v. State, 75 So. 3d 1259 (Fla. 2d DCA 2011) (unpublished opinion); McCoy v. State, 993 So. 2d 970 (Fla. 2d DCA 2008) (unpublished opinion).

With the three additional days afforded by rule 3.070, Cox's motion for rehearing was timely and it was error to dismiss it. Accordingly, we reverse the dismissal of Cox's motion for rehearing and remand for the postconviction court to consider it on the merits. See Batson, 99 So. 3d at 627.

Reversed and remanded with instructions.

NORTHCUTT, Judge.

KELLY and SMITH, JJ., Concur.