Motes v. State

W. SHARP, Judge.

Motes appeals from a summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court ruled that since this was Motes’ second rule 3.850 motion filed to collaterally attack his conviction for attempted first degree murder and it was filed more than two years after his judgment became final,1 it was both successive and untimely. We disagree, but affirm on other grounds.

In this case, Motes was convicted of attempted first degree murder based on an instruction to the jury that allowed it to convict on one of two alternative theories:…