
    UNITED STATES of America, v. Ernest GOFF, Defendant.
    Nos. 89-73-Cr-FTM-13 (B), 91-174-CIV-FTM-15 (D).
    United States District Court, M.D. Florida.
    Oct. 26, 1992.
    Douglas N.. Frazier, Asst. U.S. Atty., Ft. Myers, Florida, for U.S.
    David Martinez, Tampa, FL, for Ernest Goff.
   ORDER

GAGLIARDI, Senior District Judge.

The defendant, Ernest Goff, has moved the court to reduce his sentence pursuant to Fed.R.Crim.P. 35. The defendant was sentenced April 11, 1990 to a term of seven years imprisonment based on his plea of guilty to a charge of violating 21 U.S.C. sections 952, 960(b)(1)(G) and 963. The relevant section of Rule 35 is the Rule Applicable to Offenses Committed Prior to Nov. 1,1987.

On April 8, 1992 this court entered an order granting the defendant 10 days from its receipt to file a Rule 35(b) motion. This extension was granted on the basis of representations made by the government that Mr. Goff had withheld filing a timely Rule 35(b) motion because of its statements to Mr. Goff. Specifically, the government had led Mr. Goff to believe, as it believed, that the new Rule 35 applied to his ease and that it had a year in which to file a motion to reduce his sentence. The government elicited assistance from Mr. Goff during the year following his sentencing under the presumption that it could file a Rule 35(b) motion on his behalf if it chose to do so. Exactly one year from the day Mr. Goff was sentenced, the government filed a motion under Rule 35(b) on his behalf.

Mr. Goff would have filed a timely motion to reduce his sentence under the old version of Rule 35 had not the government, in good faith, misled him as to the appropriate time limit. Where a government authority affirmatively misleads a defendant as to the deadline by which a Rule 35 motion may be filed, the court may consider the motion, though not timely filed, on its merits. Government of the Virgin Islands v. Gereau, 603 F.2d 438 (3d Cir.1979). The court, therefore, 'will consider Mr. Goffs motion on its merits.

Taking all of the factors into consideration, the defendant’s motion to reduce the sentence is granted to the extent that the term of imprisonment is reduced to five years. The sentence is adhered to in all other respects.

So Ordered.  