Hightower v. State

324 So.3d 58

Terrance HIGHTOWER, Appellant,

v.STATE of Florida, Appellee.

No. 1D20-1569

District Court of Appeal of Florida, First District.

August 12, 2021

Terrance Hightower, pro se, Appellant.

Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.

Winokur, J. Terrance Hightower appeals the order on his rule 3.850 motion for postconviction relief, which the trial court denied as untimely. We reverse and remand for an evidentiary hearing.

On January 16, 2013, the court convicted Hightower of two counts of robbery with a firearm and sentenced him to life in prison on both counts. After sentencing, he was returned to the New Jersey Department of Corrections. At some point prior to February 2018, Hightower was transported to back Florida to begin serving this sentence.

In February 2018, Hightower moved to have the two-year time limit for filing a rule 3.850 motion tolled for the period while he was incarcerated out of state because he did not have access to Florida legal materials. See Fla. R. Crim. P. 3.850(b). The trial court construed this as a motion for an extension of time and denied it because the two-year time period had already expired. Undeterred, Hightower filed in October 2019 a rule 3.850 motion, seventeen months after his tolling motion was denied. The trial court denied the rule 3.850 motion as untimely.

On appeal, Hightower argues that it was error for the trial court to deny his motion as untimely because during the time he was incarcerated in New Jersey, he was denied access to Florida's legal system. Hightower relies on Demps v. State , 696 So. 2d 1296, 1298–99 (Fla. 3d DCA 1997), which held that a defendant incarcerated in an out-of-state prison with no access to Florida legal materials was deprived of access to the Florida courts. In response, the State notes that Demps was decided in 1997, and technology has advanced considerably since that time. This view is consistent with Piggott v. State , 14 So. 3d 298, 299 (Fla. 4th DCA 2009), where the Fourth District expressly declined to adopt Demps as "still reliable" and questioned its validity due to the fact that advancing technology had resulted in increased access to legal materials and did not always require access to paper documents or physical records. During the intervening years since Piggott , technology has only continued to increase access to legal information, even in out-of-state prisons. We agree with the approach adopted by the Fourth District in Piggott , which remanded "for the trial court to allow defendant to establish predicate facts for his alleged avoidance of the limitations bar as in Demps ." Id. at 299.

Before the trial court addresses the access-to-courts matter, we note that the record does not clearly establish that Hightower's rule 3.850 motion was timely even if all of the time he was incarcerated in New Jersey tolled the limitation period. Even if the limitation period was...