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Sehnal v. State10/6/2004
l was allowed to apply for a work permit license. The two-year time limitation expired after March 22, 2002, thus making her 3.850 motion of November 13, 2003, untimely.
Sehnal relies on this court's decision in Bilogan v. State, 802 So.2d 459 (Fla. 4th DCA 2001), for reversal of the trial court's denial of the motion as untimely. Sehnal's reliance is unwarranted because Bilogan is distinguishable. In Bilogan, this court reversed the summary denial of a similar motion, noting that Bilogan did not have the opportunity to apply for a work permit license prior to the change in the law. Therefore, the trial court's denial of the motion as untimely was error.
In reversing the denial, this court stated: "The State acknowledges that denial of the motion as untimely was error because Bilogan could not have applied for his permit before the law changed. See, e.g., Bethune v. State, 774 So.2d 4 (Fla. 2d DCA 2000)." Although the factual sequence of when Bilogan could have or should have filed for his permit is not delineated in the opinion, the court does cite to Bethune. In Bethune, the Second District Court of Appeal noted that the defendant's motion to withdraw his nolo contendere plea as involuntary for failure of his counsel to inform him of the potential sentencing-enhancing consequences of his plea was not untimely because he filed his motion within two years of the date he learned of the potential for the imposition of a habitual offender sentence. Id. at 5.
To conclude that Bilogan stands for the proposition that when there is a change in the law which would affect the voluntary nature of a plea, the running of the two-year limitation for filing a 3.850 motion begins only when a defendant files his or her motion would eviscerate the supreme court's decision in Peart that the two-year time limitation begins to run on a rule 3.850 motion to challenge a plea as involuntary when a defendant gains or should gain knowledge of circumstances which would establish a prima facie case. We, therefore, hold that Sehnal's failure to file her motion to withdraw her plea on or before March 22, 2002 results in her motion being untimely.
AFFIRMED.
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