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Kenneth G. ROGERS, Appellant, v. STATE of Florida, Appellee.

No. 2D14–503.

Decided: September 12, 2014

The postconviction court denied Kenneth G. Rogers' motion filed under Florida Rule of Criminal Procedure 3.850 on the ground that it was untimely. In the postconviction court proceedings, the State argued, and the postconviction court agreed, that the motion filed on March 6, 2013, was untimely because it was filed more than two years following his sentencing after violation of probation on February 18, 2008. Rogers did not immediately appeal the 2008 judgments and sentences but later filed a successful petition for belated appeal within the time limit provided under Florida Rule of Appellate Procedure 9.141(c)(5). Although both the State and the postconviction court were aware that Rogers had filed a successful petition for belated appeal in this court, they overlooked its significance.1

Once this court granted Rogers' petition for belated appeal, appellate case number 2D10–4415 was initiated. This court affirmed Rogers' judgments and sentences and issued its mandate on March 7, 2012. The time for Rogers to file a motion under rule 3.850(b) then began to run on the date of this court's mandate. See Twardokus v.. State, 69 So.3d 359, 360 (Fla. 2d DCA 2011). Thus, Rogers' motion was timely filed, and the postconviction court should have reviewed it on the merits.

Reversed and remanded for further proceedings.


1.  In contrast, “[t]he filing of an unsuccessful petition for belated appeal does not toll the rendition of a judgment and sentence for purposes of calculating the two-year window.” Martin v. State, 941 So.2d 1173, 1173 (Fla. 5th DCA 2006) (citing Jones v. State, 922 So.2d 1088 (Fla. 4th DCA 2006)).



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