Doty v. State

GREEN, Judge. Appellant, Wayne Doty, challenges the trial court’s order summarily denying his petition to file a belated motion pursuant to Florida Rule of Criminal Procedure 3.850. In his petition, appellant alleged that he placed a timely 3.850 motion in the [1249] custody of the prison guards with the belief it would be forwarded to the clerk’s office. After inquiring about the status of his motion, the clerk’s office informed appellant that the motion was never received. Appellant attached to his petition various documents and affidavits that support his claim. We reverse the order of the trial court and remand for an evidentiary hearing so that appellant may have the opportunity to prove that his 3.850 motion was timely placed in the custody of prison officials. See Jones v. State, 785 So.2d 561 (Fla. 2d DCA 2001). Reversed and remanded for further proceedings. PARKER, A.C.J., and WHATLEY, J„ Concur.