MILLER v. STATE, 617 So.2d 332 (Fla.App. 2 Dist. 1993)

JAMES ROBERT MILLER, APPELLANT, v. STATE OF FLORIDA, APPELLEE.

No. 93-00566.District Court of Appeal of Florida, Second District.
April 7, 1993.

Appeal from the Circuit Court, Hillsborough County, Susan Sexton, J.

Page 333

PER CURIAM.

James Robert Miller appeals the summary denial of his motion for postconviction relief, which he filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

Appellant timely filed a motion for postconviction relief, which the trial court dismissed without prejudice for lack of an oath. See Scott v. State, 464 So.2d 1171 (Fla. 1985). The order was entered after the two-year limit of rule 3.850 had expired. Twenty-eight days after the order of dismissal was entered, appellant resubmitted his motion with the appropriate oath. The trial court erred in denying his motion as time-barred. See Haywood v. State, 615 So.2d 707 (Fla. 2d DCA 1992); Lemus v. State, 585 So.2d 388 (Fla. 2d DCA 1991). Accordingly, we reverse the order of denial and remand for the trial court to rule on the merits of the motion.

Reversed and remanded.

DANAHY, A.C.J., and SCHOONOVER and THREADGILL, JJ., concur.

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