MOSE KING, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mose King, Jr. appealed the denial of his motion to vacate judgment and sentence under Florida Rule of Criminal Procedure 3.850. The appellate court dismissed the appeal because King's motion for rehearing was filed outside the fifteen-day deadline, making his subsequent notice of appeal untimely.
The appeal was dismissed as untimely. Although King signed the motion for rehearing within fifteen days of the court's order, the rule requires the motion to be filed within fifteen days, and King's motion was not filed until twenty-six days after the order was recorded. Consequently, the notice of appeal predicated on that untimely motion was also untimely.
[1] A motion for rehearing of an order denying a motion for post-conviction relief must be filed within fifteen days of the service of the order.
[2] An untimely motion for rehearing does not extend the time for filing a notice of appeal.
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Join FLexlaw to unlock all legal intelligence“An appeal may be taken to the appropriate appellate court from the order entered on the motion as from a final judgment on application for writ of habeas corpus. All orders denying motions for post-conviction relief shall include a statement that the movant has the right to appeal within thirty days of the rendition of the order. The prisoner may file a motion for rehearing of an order denying a motion under this rule within fifteen days of the date of service of the order.”
Establishes the fifteen-day deadline for filing motions for rehearing under Rule 3.850
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Join FLexlaw to unlock all legal intelligenceKing filed a motion to vacate judgment and sentence on January 4, 1982. The trial court denied the motion on March 10, 1982. King signed a motion for …
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PER CURIAM.
Mose King, Jr. filed a motion pursuant to Florida Rule of Criminal Procedure 3.850 titled “Motion to Vacate Judgment and Sentence;” he signed it January 4, 1982. The court denied the motion March 10 and, pursuant to Rule 3.850, gave King fifteen days within which to file for rehearing or thirty days to appeal. King opted to file a motion for rehearing which he signed March 25; however, it was not filed with the Circuit and County Court Clerk until April 5. The trial court summarily denied this motion on April 8, but the order was not recorded until April 9, and King’s notice of appeal was recorded May 10.
Florida Rule of Criminal Procedure 3.850 provides in part:
An appeal may be taken to the appropriate appellate court from the order entered on the motion as from a final judgment on application for writ of habeas corpus. All orders denying motions for post-conviction relief shall include a statement that the movant has the right to appeal within thirty days of the rendition of the order. The prisoner may file a motion for rehearing of an order denying a motion under this rule within fifteen days of the date of service of the order. (Emphasis supplied.) King’s motion for rehearing, signed within fifteen days of the court’s order denying his motion, was not filed with the court until April 5, twenty-six days after the order was recorded.
It has been said that “[although a motion for rehearing is authorized by Rule 3.850, it must be filed within fifteen days of the service of the order” denying the motion for post-conviction relief. Williams v. State, 392 So. 2d 323, 323 (Fla. 1st DCA 1980), appeal dismissed, 399 So. 2d 1147 (Fla.1981). Since King’s motion for rehearing was not filed within the fifteen days, it was untimely. Id. Therefore, the notice of appeal, which was predicated on the untimely motion for rehearing, see Southern Atlantic Construction Corp. v. First Corp. of DeSoto County, 419 So. 2d 729 (Fla. 4th DCA 1982), and was recorded exactly two months from recording of the order denying the Rule 3.850 motion, also was untimely. Fla.R. App.P. 9.110(b). Thus, we dismiss King’s appeal. See Mathis v. State, 419 So. 2d 774 (Fla. 1st DCA 1982).
HERSEY, GLICKSTEIN and WALDEN, concur.
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Citator
Cited By
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Luttrell v. The Fla. Parole Comm'n, 578 So. 2d 11 (Fla. 1st DCA 1991)…6, 1990. The motion for rehearing was not served until September 7, 1990. An untimely motion for rehearing does not suspend rendition of the order to be reviewed and thus does not extend the time for filing the notice of appeal. E.g., King v. State, 423 So. 2d 980 (Fla. 4th DCA 1982). Accordingly, this appeal is hereby dismissed. SHIVERS, C.J., and NIMMONS and MINER, JJ., concur.…
Authorities Cited
- Williams v. State, 392 So. 2d 323 (Fla. 1st DCA 1980)
- S. Atl. Constr. Corp. v. First Corp. OF Desoto Cnty., 419 So. 2d 729 (Fla. 4th DCA 1982)
- State v. Huber, 419 So. 2d 774 (Fla. 1st DCA 1982)