Third District Court of Appeal

State of Florida 

Opinion filed November 29, 2023.

Not final until disposition of timely filed motion for rehearing.

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No. 3D23-0380

Lower Tribunal No. F16-11036A

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Luis A. Gomez,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from 

the Circuit Court for Miami-Dade County, Laura Shearon Cruz, Judge.

Luis A. Gomez, in proper person.

Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant 

Attorney General, for appellee.

Before EMAS, MILLER and LOBREE, JJ. 

EMAS, J.
2

Luis A. Gomez appeals from a trial court order denying his motion for 

postconviction relief filed pursuant to Florida Rule of Criminal Procedure 

3.850. Gomez’s judgment and sentence became final on March 8, 2019. 

Forty-six months later—on January 9, 2023—Gomez filed the instant motion 

for postconviction relief, well beyond the two-year time limitation imposed by 

rule 3.850(b).

1 The trial court entered a final order denying the motion as 

untimely,

2 and this appeal followed. 

Gomez contends the reason his motion was untimely is that he was 

hampered in his efforts to obtain, from his former trial counsel, the necessary 

documents which he relied upon in preparing his motion. While it is true that, 

under narrow and exceptional circumstances, principles of due process may 

require permitting a defendant’s otherwise untimely postconviction motion to 

be considered on its merits, see, e.g., Harvey v. State, 11 So. 3d 457 (Fla. 

1 Rule 3.850(b) provides in pertinent part: 

A motion to vacate a sentence that exceeds the limits provided 

by law may be filed at any time. No other motion shall be filed or 

considered pursuant to this rule if filed more than 2 years after 

the judgment and sentence become final....

2 Rule 3.850(f)(1) provides: 

Untimely and Insufficient Motions. If the motion is insufficient on 

its face, and the time to file a motion under this rule has expired 

prior to the filing of the motion, the court shall enter a final 

appealable order summarily denying the motion with prejudice.
3

3d DCA 2009) (reversing summary denial and holding trial court should have 

considered that an uncounseled prisoner held in an out-of-state jurisdiction 

who is not represented by counsel and who does not have access to Florida 

legal materials has been deprived of meaningful access to Florida court, 

requiring the tolling of the two-year time limitation under rule 3.850); Demps 

v. State, 696 So. 2d 1296, 1299 (Fla. 3d DCA 1997) (reversing order denying 

defendant’s rule 3.850 motion as untimely; holding that the two-year time 

period provided for in rule 3.850 was tolled for the period of time Demps was 

deprived of access to Florida courts and that “it would be a violation of 

Demps' right of access to court under the Florida and federal constitutions to 

hold that his motion for postconviction relief is time-barred given that he did 

not have access to Florida legal materials, or a reasonable alternative, for 

the entire period within which he had to file the motion.”), this is not one of 

those exceptional circumstances, as there is nothing in the record to suggest 

that he was deprived of meaningful access to the courts or denied access to 

the materials sought.

3

 

3 We note that the documents sought by Gomez existed prior to Gomez’s 

2017 trial. Gomez initially sought the documents in a July 7, 2020, letter to 

his former trial counsel that requested “the full and complete pre-existing 

material discovery” in his case. All of the documents (save one) were 

provided to Gomez by (at the latest) April of 2021. The last remaining 

document (a statement given by the victim to law enforcement prior to 

Gomez’s 2017 trial) was not in the possession of Gomez’s former trial 
4

Gomez was sentenced on May 10, 2017, and since that time has been 

a prisoner in the custody of the State of Florida. His judgments and 

sentences were affirmed by this court on February 20, 2019, and our 

mandate issued March 8, 2019. Gomez made his first written request for 

documents on July 7, 2020, sixteen months after his judgments and 

convictions became final, leaving him only eight months to file a timely 

motion for postconviction relief under rule 3.850. Gomez fails to explain why 

he waited so long before making any effort, or submitting any request, for 

the documents, or what other efforts were made during the relevant time 

period. Further, Gomez failed to allege that, in the exercise of due diligence,

he would not have able to obtain these documents and file his postconviction 

motion within the two-year deadline. 

Affirmed. 

counsel (and thus could not be produced by him) but could have been 

obtained by Gomez from sources independent of his former trial counsel.