Florida District Courts of Appeal, 2007

Springer v. State

Springer v. State
Florida District Courts of Appeal · Decided February 7, 2007 · Farmer, Klein, Warner
958 So. 2d 389; 2007 WL 981624 (Southern Reporter, Second Series)

Springer v. State

Opinion of the Court

PER CURIAM.

Affirmed.

WARNER, FARMER and KLEIN, JJ., concur.

070rehearing

On Motion for Rehearing

FARMER, J.

We grant the motion for rehearing and again affirm. Defendant claims he was illegally sentenced in absentia and that under rule 3.850 he is entitled to resen-tencing according to our decision in Zuluaga v. State, 793 So.2d 60 (Fla. 4th DCA 2001). He misreads Zuluaga.

*390We note that defendant’s rule 3.850 claim does not state under oath that his failure to appear for sentencing was involuntary. We take that omission to be in the nature of a negative pregnant1 assertion: he alleges that he was absent from the sentencing (he was arrested in New York) but not that he was somehow prevented from attending. He claims he is entitled to seek relief under rule 3.850 anyway because, as he argues, the time for filing such motion begins to run only when he is returned to Florida custody.

It is true that in Zuluaga we disclaimed making any determination as to whether the 2-year period for filing rule 3.850 claims for post-conviction relief begins to run from the sentencing when a defendant voluntarily absents himself from the proceeding. Nevertheless, our decision on the merits foretells the outcome on that issue. If the voluntary failure of a defendant to appear at sentencing does not render the sentence illegal, there seems little reason to suppose that the time to seek post-conviction relief from the sentence does not begin to run from that legal sentencing. In any event, we now make that holding explicit. When a convicted defendant voluntarily flees from the sentencing and remains away while the court pronounces sentence in his absence, in the absence of any direct appeal from the sentencing or other legal circumstance resulting in a tolling, the time for seeking relief from the sentence under rule 3.850 begins to run from the pronouncement.

WARNER and KLEIN, JJ., concur.

. Effectually described as a negatively pregnant admission, allegation or assertion of a particular fact that implies or makes one understand a positive/affirmative within the allegation. See http://www.legal-explanations. com/definitions/negative-pregnant.htm. Here his claim is that he was absent from the sentencing without qualifying that statement by a positive assertion that his absence was involuntary.

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