HERBERT LEE HATHCOCK, JR., PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that a timely filed motion for rehearing tolls the time for filing a notice of appeal, making a subsequently filed notice of appeal timely once the motion is ruled upon.
Petitioner sought a belated appeal from an order denying post conviction relief. The trial court found a timely motion for rehearing had been mislaid,…
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PER CURIAM.
Petitioner Herbert Lee Hathcock, Jr. filed a petition for writ of habeas corpus, seeking the right to file a belated appeal from a trial court order denying his motion for post conviction relief.
Initially this court remanded the case to the trial court for appointment of a commissioner to make evidentiary findings on the issues raised by petitioner, as to whether his failure to timely file a notice of appeal was attributable to acts of state officials or agents.1 The trial court reviewed the court file and discovered that petitioner had timely filed a motion for rehearing, which had been mislaid, but which effectively tolled the time requirements for filing a notice of appeal. The trial court thereupon issued an order which we interpret as a denial of the petitioner’s motion for rehearing, returning the cause to this court for consideration of the appeal as timely filed.
Since petitioner’s motion for rehearing was timely filed, his notice of appeal, filed while the motion remained pending, was premature. When the trial court finally ruled on the motion, the appeal matured and jurisdiction vested in this court. Williams v. State, 324 So. 2d 74 (Fla.1975); Park v. Bayview Village Condominium Association, 468 So. 2d 1116 (Fla. 4th DCA 1985). See also Leopard v. State, 489 So. 2d 859 (Fla. 1st DCA 1986).
Therefore, we deny petitioner’s writ of habeas corpus to file a belated appeal. We vacate our order dated September 4, 1985, wherein we dismissed petitioner’s appeal in Hathcock v. State, Case Number 85-1970 and we reinstate that appeal. The date of this opinion shall be used as the commencement date of the appeal in Case Number 85-1970.
ANSTEAD, GLICKSTEIN and DELL, JJ., concur. . Petitioner’s pro se appeal to this court from the order denying post conviction relief was dismissed as untimely in Hathcock v. State, Case No. 85-1970.
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In re Forfeiture OF $104 v. Metro Dade Police Dep't, 589 So. 2d 283 (Fla. 1991)…al divests the trial court of jurisdiction. The district court expressly recognized that its holding was in conflict with Leopard v. State, 489 So. 2d 859 (Fla. 1st DCA 1986); Lloyd v. Harrison, 489 So. 2d 856 (Fla. 1st DCA 1986); Hathcock v. State, 492 So. 2d 756 (Fla. 4th DCA 1986); and Park v. Bayview Village Condominium Association, 468 So. 2d 1116 (Fla. 4th DCA 1985). We find conflict1 and resolve the conflict by approving the principle set forth in the Third District Court’s decision but disapprove its…
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In re Forfeiture OF $104 v. Metro Dade Police Dep't, 578 So. 2d 727 (Fla. 3d DCA 1991)…filed simultaneously with notice of appeal). We indicate our disagreement with the cases that hold to the contrary. E.g., Leopard v. State, 489 So. 2d 859 (Fla. 1st DCA 1986); Lloyd v. Harrison, 489 So. 2d 856 (Fla. 1st DCA 1986); Hathcock v. State, 492 So. 2d 756 (Fla. 4th DCA 1986); Park v. Bayview Village Condominium Ass’n, Inc., 468 So. 2d 1116 (Fla. 4th DCA 1985). Motion denied.5,6 .The entire passage reads as follows: Thus, a notice of appeal which is filed after the oral pronouncement of judgment an…
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Authorities Cited
- Williams v. State, 324 So. 2d 74 (Fla. 1975)
- Leopard v. State, 489 So. 2d 859 (Fla. 1st DCA 1986)
- Pascal v. Pascal, 468 So. 2d 1116 (Fla. 3d DCA 1985)