Olkewicz v. State

633 So.2d 1132 (1994) James OLKEWICZ, Appellant, v. STATE of Florida, Appellee. No. 93-3700. District Court of Appeal of Florida, Fourth District. March 16, 1994. Richard L. Jorandby, Public Defender, and Mallorye G. Cunningham, Asst. Public Defender, West Palm Beach, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Joan L. Greenberg, Asst. Atty. Gen., West Palm Beach, for appellee. PER CURIAM. The appellant's post-conviction motion was received by the circuit court clerk two days after the expiration of the two year time limit set forth in rule 3.850(b), Florida Rules of Criminal Procedure, and was denied as untimely. The motion was signed by the appellant, a prisoner proceeding pro se, and notarized by a prison employee three days before the deadline. On these facts, the date of filing does not conclusively demonstrate that the motion was untimely. Haag v. State, 591 So.2d 614 (Fla. 1992); Rule 33-3.005(9), Fla. Admin. Code (1993). We therefore reverse the order of denial and remand the case for further proceedings. GLICKSTEIN, FARMER and KLEIN, JJ., concur.