AUSTIN v. STATE, 2D00-434 (Fla.App. 2 Dist. 5-26-2000)

No. 2D00-434.District Court of Appeal of Florida, Second District.
Opinion filed May 26, 2000.

Appeal pursuant to Fla.R.App.P. 9.140(i) from the Circuit Court for Pasco County; Maynard F. Swanson, Judge.

PER CURIAM.

Calvin J. Austin appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Austin pleaded guilty to sexual battery and kidnaping, was sentenced in February 1997, and did not appeal. He filed this motion with the trial court in October 1999. Consequently, his motion is untimely and the trial court’s denial of relief is affirmed.

Austin argues in his notice of appeal that his untimeliness should be excused because his mental illness and the resultant restrictions on his activities in prison prevented him from timely filing the motion. However, incapacity or mental illness is not a listed exception to the two-year limit set out in rule 3.850(b).

Affirmed.

THREADGILL, A.C.J., and BLUE and GREEN, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.