IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

SCOTTY BARTEK

,

Appellant

,

v. Case No. 5D 15

- 1186

STATE OF FLORIDA

,

Appellee

.

________________________________/

Opinion filed August 12, 2016

Appeal from the Circ uit Court for Marion County

, Hale R. Stancil , Judge.

Christian W. Waugh, of Waugh Law, P.A., Lady Lake and Stanley w. Plappert, of The Florida Legal Advocacy Group, P.A., Ocala, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Marie T. R ives, Assistant Attorney General, Daytona Beach, for Appellee.

PALMER , J.

Scotty Bartek appeals the trial court’s order dismissing his petition seeking

compensation under Florida's Victims of Wrongful Incarceration Compensation Act (the2

Act )

. See §§ 961.01

- 07, Fla

. Stat. (2014). Determining that the trial court w as correct in

dismissing Bartek's petition as untimely filed , we affirm. 1

Bartek was convicted on two counts of sexual battery upon a child under twelve

years of age and sentenced to a term of life in prison. After t wenty

- two years of

incarceration, he filed a post

- conviction motion seeking a new trial based on newly

discovered evidence. The motion alleged that post

- conviction relief was warranted

because the victim had reca nted her statement that Bartek had sexually batter ed her.

Upon review, t he trial court entered a n order vacating Bartek's conv iction and ordering

that he be re

- tried . The State appealed , but we per curiam affirmed. State v. Bartek , 127

So. 3d 526 (Fla. 5t h DCA 2013). Our m andate was issued on December 20, 2013 , and

o n February 27, 2014, the State entered a nolle prosequi in Bartek's case

.

On May 20, 2014, Bartek filed a p etition for Compensat ion for Wrongful

Incarceration. The State opposed the petition, arguing that it was untimely filed

. Agreeing

with the State, the trial court dis missed the petition as untimely. This appeal followed.

Bartek argues that the trial court erred in dismissing his petition as un timely

becaus e it was filed withi n ninety days of the filing of the nolle prosequi . We disagree.

“Statutory construction is a question of law . . . subject to de novo review.” Fl a

.

Carry, Inc. v. Univ. of Fl a

. , 180 So. 3 d 137, 142 (Fla. 1st DCA 2015) (citations omi tted)

.

The Act provides that a person must file a petition seeking compensation within 90

days after the order vacating a conviction and sentence becomes final. § 961.03 (1)(b) 1.

,

Fla. Stat. (2014)

. The Act does not mention the State’s filing of a nolle prosequi . As the

1 Jurisdiction is proper pursuant to rule 9.030(b)(1)(A) of the Florida Rules of Appellate Procedure

. See, e.g.

, Van Poyck v. State , 54 So. 3d 567 (Fla. 3d DCA 2011); Fessenden v. State , 52 So. 3d 1 (Fla. 2d D C A 2010).3

trial court aptly observed in its dismissal order, " [ t ]he plain language of the statute requires

a defendant to file the petition within 90 days after the o rder vacating a conviction and

s entence becomes final, not upon the State entering a nolle prosequi .”

As such , Bartek had only until March 20 , 2 014 , to file a petition seeking

compensation

. Thus , his May 20, 2014 petition was untimely filed. See generally Ward

v. Dugger

, 508 So. 2d 778, 779 (Fla. 1st DCA 1987) ( interpreting the phrase “become

final” in r ule 3.850(b) as being the date mandate i ssued ). Accord Beaty v. State , 701 So.

2d 856, 857 (Fla. 1997 ) ; Lewis v. State

, 4 1 Fla. L. Weekl y D1288 (Fla. 4th DCA June 1,

2016); Breland v. State , 58 So. 3d 326, 327 (Fla. 1st DCA 2011).

We have reviewed Bartek's other claims of error and find them to be without merit.

AFFIRMED

.

TORPY and LAMBERT , JJ., concur.