ROOSEVELT RICHARDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roosevelt Richardson appeals his probation violation conviction and 25-year sentence, but the Florida Fifth District Court of Appeal dismisses the appeal for lack of jurisdiction because Richardson's notice of appeal was untimely filed. The court holds that Richardson's motion for new trial was filed one day late, so it did not extend the time for filing a notice of appeal.
The court holds that because Richardson's motion for new trial was filed one day late (May 24 instead of by May 23), it did not delay the rendition of judgment and sentence for purposes of the notice of appeal deadline. Accordingly, the notice of appeal filed on August 11, 1988, was untimely under the 30-day rule, and the court lacks jurisdiction to hear the appeal.
[1] A motion for new trial must be filed within ten days after the rendition of the verdict or the finding of guilt by the court in a non-jury trial.
[2] The rendition of a verdict or the court's finding of guilt in a non-jury trial triggers the commencement of the ten-day period for filing a motion for new trial.
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Join FLexlaw to unlock all legal intelligence“A motion for new trial or in arrest of judgment, or both, may be made within ten days after the rendition of the verdict or the finding of the court.”
Establishes the ten-day deadline for filing a motion for new trial under Florida Rule of Criminal Procedure 3.590(a)
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Join FLexlaw to unlock all legal intelligenceOn May 12, 1988, the trial court conducted a violation of probation hearing, found Richardson guilty, revoked his probation, and sentenced him to 25 y…
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ORFINGER, Judge.
The State moves to dismiss this appeal, contending that we lack jurisdiction because the notice of appeal was not timely filed. We agree that we lack jurisdiction and dismiss the appeal.
On May 12, 1988, at the conclusion of a violation of probation hearing, the trial court found defendant guilty of such violation, signed the order revoking probation and sentenced defendant on the original charge to 25 years’ incarceration. On May 24, 1988, defendant filed a motion for new trial. Judgment and sentence were entered May 81, 1988; the order denying the motion for new trial was entered July 25, 1988; and notice of appeal was filed on August 11, 1988. Unless the motion for new trial delayed rendition1 of the judgment and sentence until that motion was disposed of on July 25, 1988, the notice of appeal is untimely. The State contends that the motion for new trial was not timely filed, so that the rendition of the judgment was its entry date of May 31, 1988, making the notice of appeal, filed more than 30 days thereafter on August 11, 1988, too late to confer jurisdiction on this court.
Florida Rule of Criminal Procedure 3.590(a) provides:
A motion for new trial or in arrest of judgment, or both, may be made within ten days after the rendition of the verdict or the finding of the court. A timely motion may be amended to state new grounds without leave of court prior to expiration of the 10-day period, and in the discretion of the court at any other time before the motion is determined.
“[T]he finding of the court contemplated by the Rule is the adjudication of guilt by the court in a non-jury trial. That is to say, the finding of the court in a non-jury trial is the equivalent of the rendition of the verdict in a jury trial.” Costello v. State, 246 So. 2d 752 (Fla.1971). In jury trials, the rendition of the verdict, which triggers the start of the ten day period for filing a motion for new trial, occurs when the verdict is announced and entered of record. Fla.R.Crim.P. 3.440. Similarly, in the non-jury setting, the court’s finding of guilt starts the ten day period running.
In the instant case, the time for filing the motion for new trial began running May 12th when the trial court announced its finding that defendant was guilty of violating his probation. Because the ten day period ended on Sunday, May 22, 1988, defendant had until Monday, May 23rd to timely file his motion. See Fla.R. Crim.P. 3.040 (“The last day of the period so computed shall be counted, unless it is a Saturday, Sunday or legal holiday, in which event the period shall run until the end of a next day which is neither a Saturday, Sunday or a legal holiday”). Defendant’s motion was not filed until May 24, one day late. Because it was not timely, the motion for new trial did not delay rendition of the judgment and sentence for purposes of filing a notice of appeal. See Fla.R.App.P. 9.020(g); Denard v. State, 410 So. 2d 976 (Fla. 5th DCA 1982). The notice of appeal, filed August 11, was not filed within the 30 day period following the rendition of the judgment and sentence and thus this court lacks jurisdiction to hear the appeal.
APPEAL DISMISSED.
DAUKSCH and COWART, JJ., concur. . "Where there has been filed in the lower tribunal an authorized and timely motion for new trial or rehearing ... the order shall not be deemed rendered until disposition thereof.” Fla.R.App.P. 9.020(g).
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State v. Anton, 700 So. 2d 743 (Fla. 2d DCA 1997)…n days after rendition of the verdict. See Fla. R.Crim. P. 3.590(a); Costello v. State, 246 So. 2d 752 (Fla.1971), overruled in part on other grounds, State v. District Court of Appeal, First District, 569 So. 2d 439 (Fla.1990); Richardson v. State, 540 So. 2d 133 (Fla. 5th DCA 1989). Failure to file such a motion within the allotted time deprives the trial court of jurisdiction to rule on the motion. See Clifton v. State, 697 So. 2d 1000 (Fla. 2d DCA 1997); Canty v. State, 402 So. 2d 1232 (Fla. 5th DCA 1981)…
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Stephenson v. State, 640 So. 2d 117 (Fla. 2d DCA 1994)…trial court, however, correctly struck it as untimely. Therefore, “[bjecause it was not timely filed, the motion for new trial did not delay rendition of the judgments] and sentenced] for purposes of fifing a notice of appeal.” Richardson v. State, 540 So. 2d 133, 134 (Fla. 5th DCA 1989). We have also considered appellate counsel’s argument in response to our order to show cause that we can conclude from the record that it is just as probable that the notice was filed with the clerk sometime on Friday but n…
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Salyers v. State, 705 So. 2d 1024 (Fla. 5th DCA 1998)…used to have four days to file new trial motions. The criminal rule was changed to provide for ten days instead of four days, but there is no indication that the change was intended to make “service” the determinative act. See; Richardson v. State, 540 So. 2d 133 (Fla. 5th DCA 1989) (motion for new trial “filed” eleven days after trial court’s finding was not timely and did not delay rendition of judgment and sentence for purposes of filing notice of appeal); Bothwell v. State, 450 So. 2d 1150 (Fla. 2d DCA 1…
Authorities Cited
- Costello v. State, 246 So. 2d 752 (Fla. 1971)
- Denard v. State, 410 So. 2d 976 (Fla. 5th DCA 1982)