JOSEPH J. WEITZ, DOC #139777, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Polk County; William Sites, Judge.
J. Weitz, pro se.
Jo Bondi, Attorney General, Tallahassee, for Appellee.
Weitz challenges the postconviction court's order
summarily denying his Florida Rule of Criminal Procedure
3.850 motion in which he alleged six claims of ineffective
assistance of counsel. We affirm without comment the denial
of claims one, two, three, five, and six. However, we reverse
the denial of claim four and remand for the postconviction
court to consider Weitz's amended claim four filed on May
was convicted by a jury of transmitting material harmful to
minors to a minor and unlawful use of a two-way
communications device. He was sentenced as a habitual felony
offender (HFO) to ten years' imprisonment on the
transmitting conviction and to a consecutive five-year
non-HFO term on the two-way communications device count. On
direct appeal, this court affirmed Weitz's convictions
but reversed his sentences and remanded with instructions to
run the sentences concurrently instead of consecutively.
Weitz v. State, 196 So.3d 466, 466 (Fla. 2d DCA
2016). Weitz did not appeal his amended sentence.
then filed a timely rule 3.850 motion on April 6, 2017. That
motion was summarily dismissed as facially insufficient with
leave to amend. Weitz filed an amended motion on May 5, 2017.
The postconviction court summarily denied that motion on May
25, 2017, addressing each of Weitz's six grounds for
relief and concluding that each was conclusively refuted by
the record. Weitz then filed a motion for rehearing, in which
he alleged that on May 15, 2017-prior to the court entering
its order denying his May 5 motion-he filed a second amended
rule 3.850 motion modifying several of his initial claims.
Weitz attached to his motion for rehearing a copy of his
second amended motion, which according to its date stamp had
been provided to prison officials on May 15, 2017. On June
16, 2017, the postconviction court denied the motion for
rehearing, indicating that the record did not include the May
15 motion and that the last motion filed by Weitz was his May
motion may . . . be amended at any time prior to either the
entry of an order disposing of the motion or the entry of an
order . . . directing that an answer to the motion be filed .
. . whichever occurs first." Fla. R. Crim. P. 3.850(e).
Here, Weitz's second amended motion was filed on May 15
when it was handed to prison officials. See Haag v.
State, 591 So.2d 614, 617 (Fla. 1992) ("Under the
mailbox rule, a petition or notice of appeal filed by a pro
se inmate is deemed filed at the moment in time when the
inmate loses control over the document by entrusting its
further delivery or processing to agents of the state.
Usually, this point occurs when the inmate places the
document in the hands of prison officials. . . . [W]e hold
that the mailbox rule exists as a matter of Florida
law." (citation omitted)). As such, it was filed ten
days before the postconviction court entered its order
summarily denying Weitz's first amended motion. Although
the motion may not have been in the record prior to the
court's denying Weitz's motion for rehearing, Weitz
did attach a copy of the amended motion to the motion for
rehearing and the copy reflected the prison's date stamp.
The court therefore erred in denying the motion for
rehearing. See Bonilla v. State, 106 So.3d 534, 534
(Fla. 4th DCA 2013) ("Bonilla timely turned over the
supplemental motion to prison officials for mailing before
the two-year time period of rule 3.850 expired and before
the trial court ruled on the initial motion. We recognize
that the supplemental motion may not have been received by
the trial court prior to it[s] ruling on the initial motion.
However, Bonilla moved for rehearing, noting his timely
supplemental motion and furnishing a copy for review."
our review of both the May 5 and the May 15 motions reveals
that only one claim for relief, ground four, was modified in
any way. In ground four of the original motion Weitz alleged
that counsel was ineffective for failing to object to the
prosecutor's misrepresenting the evidence in her rebuttal
closing argument. The postconviction court summarily denied
this claim by attaching the transcript of the rebuttal
closing argument in which it was clear that the prosecutor
did not say what Weitz had alleged in his motion. However,
the amended motion's ground four alleged that counsel was
ineffective for failing to object to the prosecutor
misrepresenting the evidence while conducting redirect
examination of the investigating detective. As such, the
postconviction court's attachment does not conclusively
refute the amended ground four. We therefore reverse the
summary denial of this ground and remand with instructions
that the postconviction court consider ground four of the May
15 amended motion, determine whether it is facially
sufficient, and either attach portions of the record that
conclusively refute it or grant an evidentiary hearing.
in part, reversed in ...