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Date: 05-15-2018

Case Style:


Case Number: 5D17-2136



Plaintiff's Attorney: Pamela Jo Bondi, Attorney General, and Douglas T. Squire, Assistant Attorney General

Defendant's Attorney: Kenneth C. Gallagher

Description: In case number 2008-CF-8067, Millan pled to one count of lewd and lascivious
battery. Pursuant to his plea agreement, Millan was placed on sex offender probation for
six years as a Youthful Offender. He was later charged with violating his probation by
committing new law violations (several lewd and lascivious batteries). After an evidentiary
hearing, the trial court found that Millan had violated his probation and sentenced Millan
to fifteen years in prison. This court affirmed the trial court’s finding that Millan had
violated his probation, but reversed and remanded Millan’s sentence so that it could be
amended to reflect that Millan was sentenced as a Youthful Offender. See Millan v. State,
135 So. 3d 382 (Fla. 5th DCA 2014).
The State also charged Millan in a separate case, 2012-CF-1984, with three counts
of lewd and lascivious battery. These charges arose from allegations that had also been
the basis for some of the new law violations found to have been committed by Millan in
his violation of probation case. After a jury trial, Millan was convicted on all three counts
and sentenced to concurrent terms of fifteen years’ incarceration, with said sentences
running consecutive to his sentence in 2008-CF-8067. These convictions and sentences
were per curiam affirmed by this court. See Millan v. State, 145 So. 3d 862 (Fla. 5th DCA
Millan, through postconviction counsel, timely filed his initial Florida Rule of
Criminal Procedure 3.850 motion in case number 2008-CF-8067. By order dated
February 14, 2017, the trial court struck postconviction claims 2, 3, 4(a), and 4(b), as
facially insufficient. The trial court provided Millan sixty days in which to file an amended
motion. Having received no amended motion within the sixty-day window, the trial court
proceeded to address the merits of Millan’s remaining claims (claims 1 and 4(c)).
In May 2017, Millan’s postconviction counsel filed a motion for reconsideration
and/or rehearing, asserting that because of a calendaring error, counsel had failed to file
a timely amended postconviction motion. Millan’s counsel then filed a “Second Amended
Motion for Post-Conviction Relief.” The trial court agreed to consider the “Second
Amended Motion for Post-Conviction Relief,” after stating “the Court will hear the untimely
“Second Amended Motion for Post-Conviction Relief . . . in fairness to Defendant as the
untimeliness was through no fault of Defendant.” The trial court proceeded to deny the
claims set forth in the Second Amended Motion for Post-Conviction Relief because the
claims related to events occurring in case number 2012-CF-1984.
It is evident from the record that counsel misfiled the “Second Amended Motion for
Post-Conviction Relief.” Although the 2008-CF-8067 case number had been affixed to
the motion, the factual recitations in the motion referenced matters occurring in case
number 2012-CF-1984. As a result of counsel’s errors, a motion amending claims 2, 3,
4(a), and 4(b) of the initial postconviction motion filed in case number 2008-CF-8067 has
yet to be filed.

Outcome: On remand, the trial court is to afford Millan an additional thirty days in
which to file an amended motion for postconviction relief as to claims 2, 3, 4(a) and 4(b).
We affirm the trial court’s order denying claims 1 and 4(c) of the initial motion for
postconviction relief.
AFFIRMED, in part; REVERSED, in part; and REMANDED.

Plaintiff's Experts:

Defendant's Experts:


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