JOSEPH WALTER KLEMBA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Klemba appealed a conviction for aggravated assault on a police officer and resisting arrest with violence, claiming a speedy trial violation. The court dismissed the appeal for lack of jurisdiction because Klemba's notice of appeal was filed more than 30 days after judgment, and his intervening motion to reduce sentence did not toll the appeal deadline.
The court held that a motion to reduce sentence does not toll the time for filing a notice of appeal under the current appellate rules. Because Klemba's notice of appeal was filed more than 30 days after judgment, the court lacks jurisdiction to consider the appeal.
[1] A motion to reduce a sentence does not toll the time for filing an appeal.
[2] The filing of a motion to reduce sentence does not delay the rendition of a judgment or order for purposes of appeal under current appellate rules.
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Join FLexlaw to unlock all legal intelligence“A motion to reduce a sentence is not a post-judgment motion which tolls the time for filing an appeal.”
Establishes the primary legal principle that motions to reduce sentence do not extend the appeal deadline
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Join FLexlaw to unlock all legal intelligenceKlemba pled nolo contendere to one count each of aggravated assault upon a police officer and resisting arrest with violence. Judgment was entered on …
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PER CURIAM.
Joseph Walter Klemba, appearing pro se, pled nolo contendere to one count each of aggravated assault upon a police officer and resisting arrest with violence. This plea was accepted by the court and judgment was entered on October 22, 1985. Thereafter, appellant filed a motion to reduce sentence which was granted on November 15, 1985. Then, on December 2, 1985, appellant filed a notice of appeal arguing a speedy trial violation. We do not have jurisdiction to consider Mr. Klemba’s appeal.
A motion to reduce a sentence is not a post-judgment motion which tolls the time for filing an appeal. Joseph v. State, 437 So. 2d 245 (Fla. 5th DCA 1983); Potts v. Wainwright, 413 So. 2d 156 (Fla. 4th DCA 1982), approved on other grounds, 438 So. 2d 825 (Fla.1983); Guzman v. State, 364 So. 2d 523 (Fla. 2d DCA 1978). These cases pose no conflict with our earlier decision in Strucki v. State, 365 So. 2d 222 (Fla. 4th DCA 1978), because Strucki applied the old appellate rule which stated that the rendition of a judgment or order was delayed when any post-trial motion permitted by the rules was filed. See Florida Appellate Rule 1.3 (1962 Revision). By contrast, the new appellate rule on the issue states that only the post-trial motions listed within will serve to toll the time for filing a notice of appeal. A motion to reduce sentence is not listed. See Fla.R.App.P. 9.020(g). Thus, Mr. Klemba’s notice of appeal was filed more than 30 days after the rendition of his judgment, and we are without jurisdiction to consider his appeal. See also Joseph, 437 So. 2d at 246; Guzman, 364 So. 2d at 523.
DISMISSED FOR LACK OF JURISDICTION.
GLICKSTEIN, GUNTHER, and STONE, JJ., concur.
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Fire & Cas. Ins. Co. of Conn. v. Sealey, 810 So. 2d 988 (Fla. 1st DCA 2002)…fies these motions and sets forth the requirements for suspending the date of rendition.1 A motion is generally not effective to suspend rendition of the time for an appeal unless it is one of the motions identified in the rule. See Klemba v. State, 490 So. 2d 1050 (Fla. 4th DCA 1986); Joseph v. State, 437 So. 2d 245, 246 (Fla. 5th DCA 1983); Culpepper v. Britt, 434 So. 2d 31, 32 (Fla. 2d DCA 1983). If a party files a motion that is authorized in the proceeding, but not listed in rule 9.020(h), the time for fi…
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Winslow v. State, 37 So. 3d 974 (Fla. 1st DCA 2010)…mitigating factors that were detailed in the motion, which was brought pursuant to Florida Rule of Criminal Procedure 3.800(c). “A motion to reduce a sentence is not a post-judgment motion which tolls the time for filing an appeal.” Klemba v. State, 490 So. 2d 1050 (Fla. 4th DCA 1986). See Fla. R.App. P. 9.020(h); Jones v. State, 28 So. 3d 981 (Fla. 2d DCA 2010). Additionally, an order on a 3.800(c) motion is not appealable. Davis v. State, 745 So. 2d 499 (Fla. 1st DCA 1999); Daniels v. State, 568 So. 2d 63 (F…
Authorities Cited
- Louie L. Wainwright v. Potts, 438 So. 2d 825 (Fla. 1983)
- Guzman v. State, 364 So. 2d 523 (Fla. 2d DCA 1978)
- Potts v. Louie Wainwright, 413 So. 2d 156 (Fla. 4th DCA 1982)
- Strucki v. State, 365 So. 2d 222 (Fla. 4th DCA 1978)
- Ladd v. State, 437 So. 2d 245 (Fla. 5th DCA 1983)
- Miller v. State, 437 So. 2d 245 (Fla. 5th DCA 1983)