Hearing on a Claim That Petitioner Missed the Deadline Due to Neglect of the Attorney to File the Motion In Timely Manner
In Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999) the petitioner claimed that his privately retained counsel orally agreed to file a motion for postconviction relief but failed to do so in a timely manner.
The court held that "due process entitles a prisoner to a hearing on a claim that he or she missed the deadline to file a rule 3.850 motion because his or her attorney had agreed to file the motion but failed to do so in a timely manner." Steele, 747 So. 2d at 934.
The State argues that those same due process concerns do not pertain where the petitioners have had the opportunity to raise their claims in the trial court in an original motion for postconviction relief. See Steele v. Kehoe, 724 So. 2d 1192, 1197 (Fla. 5th DCA 1998) (Sharp, J. concurring specially) ("Unlike the present case, Lambrix had an opportunity to file a motion for post-conviction relief. In contrast, Steele's counsel frustrated his intention to file post-conviction relief proceedings.") approved, 747 So. 2d 931 (Fla. 1999).
In Steele the court amended rule 3.850(b) to include subdivision (3). See Steele, 747 So. 2d at 934.
The amended rule provides:
(b) Time Limitations. a motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case or more than 1 year after the judgment and sentence become final in a capital case in which a death sentence has been imposed unless it alleges that
(3) the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion.