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749 So. 2d 514

Porter v. State

District Court of Appeal of Florida

Decided September 10, 1999

District Court of Appeal of Florida · decided 1999-09-10

Cited by 2 later decisions — most recently May 2011

2 state decisions

Key passage — most relied on by later courts

“When a verdict has been rendered against the defendant or the defendant has been found guilty by the court, the court on motion of the defendant, or on its own motion, may grant a new trial or arrest judgment. Rule 3.590 provides in pertinent part: (a) Time for Filing. A motion for new trial or in arrest of judgment, or both, may be made within 10 days after the rendition of the verdict or the finding of the court. A timely motion may be amended to state new grounds without leave of court prior to expiration of the 10 day period, and in the discretion of the court at any other time before the motion is determined. (b) Oral Motions. When the defendant has been found guilty by a jury or by the court, the motion may be dictated into the record, if a court reporter is present, and may be argued immediately after the return of the verdict or the finding of the court. The court may immediately rule on the motion. (c) Written Motions. The motion may be in writing, filed with the clerk; it shall state the grounds on which it is based. A copy of a written motion shall be served on the prosecuting attorney. When the court sets a time for the hearing thereon, the clerk may notify counsel for the respective parties or the attorney for the defendant may serve notice of hearing on the prosecuting officer.”

quoted by 1 later decision, including State v. Nicholson

Relies on Clifton v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1999-09-10

View the full empirical analysis of this case →

FULMER, Judge.

¶1The issue raised in this appeal is whether a motion for new trial was timely filed. We conclude that it was not, and therefore, affirm.

¶2On August 28, 1997, a jury found James Lee Porter guilty of two counts of driving under the influence resulting in serious injury and one count of driving with a suspended license. On September 8, 1997, Porter’s trial counsel prepared a motion for new trial and a proposed order for posttrial release. The two documents were delivered together directly to the tri*515al judge’s office by counsel’s secretary and left there. The trial judge reviewed the proposed order for posttrial release, entered a written ruling thereon, dated and signed the order and placed it in his out box to be delivered to the clerk’s office. He also placed the motion for new trial in the out box. However, no notations were made on that document until it was delivered to and date stamped by the clerk’s office on September 10,1997.

¶3An evidentiary hearing was later held on the motion for new trial. The State did not raise an objection to the timeliness of the motion. The trial court granted the motion for new trial based on newly discovered evidence. Eventually, the State did raise the timeliness issue by filing a motion to vacate the new trial order based on lack of jurisdiction.1 A successor judge presided over the hearing on the State’s motion.

¶4Florida Rule of Criminal Procedure 3.590(a) requires that a motion for new trial be made “within 10 days after the rendition of the verdict or the finding of the court.” In this case, the operative date for compliance with the ten-day time limitation was Monday, September 8, 1997. Rule 3.030(d) provides that papers and other pleadings shall be filed with the clerk of the court, “except that the judge may permit the papers to be filed with him or her, in which event the judge shall note thereon the filing date and transmit them to the office of the clerk.” Porter contends that, pursuant to Florida Rule of Criminal Procedure 3.030(d), the motion was timely filed when it was delivered to the judge’s office on September 8, 1997. The State contends that the motion was filed when it was date stamped in the clerk’s office on September 10,1997.

¶5At the hearing on the State’s motion, the original trial judge testified that he recalled receiving a motion for new trial during the fall of 1997, but did not recall any instruction accompanying it saying, “Judge, I need you to time date it in if you would.” He explained that when he is asked to file or be the recipient for the filing of a document, he makes a notation on the face of the document consisting of his initials and the date and time. He further explained that “[i]f no one requested it [filing], generally I would assume that [it] was filed with me or placed in my basket in my office in error and it needed to go to the Clerk of the Courts so that it could be appropriately stamped in at the right time reflected in the file.”

¶6The secretary who delivered the motion for new trial and the proposed order for posttrial release testified that she did not have an independent recollection of whether she filed the motion in the clerk’s office or whether she left the motion and order in the judge’s office. She acknowledged that it was very likely that she left the motion for new trial in the judge’s office when she dropped off the order for posttrial release. When asked if she ever requested that the judge file the motion for her, she replied, “No.” After hearing additional testimony and argument of counsel, the successor judge ruled that the motion for new trial was not timely filed and entered an order denying the motion on that basis. We agree, and therefore, affirm.

¶7Affirmed.

BLUE, A.C.J., and SALCINES, J., Concur.

¶8. Because the time limitation contained in Florida Rule of Criminal Procedure 3.590(a) is jurisdictional, the State could raise the issue notwithstanding the subsequent, myriad proceedings and its failure to earlier challenge the timeliness of the motion. See Clifton v. State, 697 So.2d 1000 (Fla. 2d DCA 1997).

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