YOUNG v. STATE, 629 So.2d 1116 (Fla.App. 5 Dist. 1994)

JOHNNY C. YOUNG, SR., APPELLANT, v. STATE OF FLORIDA, APPELLEE.

No. 93-2386.District Court of Appeal of Florida, Fifth District.
January 21, 1994.

3.850 Appeal from the Circuit Court for Brevard County, John Antoon, II, Judge.

Johnny C. Young, Sr., pro se.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Mark S. Dunn, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Johnny C. Young, Sr., appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Young’s motion is not included in the record on appeal and cannot be located by the clerk below, the state concedes that the motion has been inadvertently misplaced not due to the fault of Young. We vacate the trial court’s order and remand this cause to the trial court with directions to Young to refile his motion within 60 days of issuance of the mandate in this case, which motion should be deemed timely if so filed, and for further proceedings thereon See, e.g., Bell v. State, 595 So.2d 1018 (Fla. 2d DCA 1992).

Order VACATED; cause REMANDED.

DAUKSCH, PETERSON and DIAMANTIS, JJ., concur.

jdjungle