LEROY JORDAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Leroy Jordan appealed the denial of his motion to correct an illegal sentence, but filed his notice of appeal 53 days late. The Florida appellate court dismissed the appeal for lack of jurisdiction, holding that Jordan failed to demonstrate grounds excusing the tardy filing.
The court dismissed the appeal for lack of jurisdiction. The court held that the circuit court's failure to provide notice of appeal rights does not excuse late filing because Rule 3.800(a) (under which Jordan sought relief) does not expressly require such notice, unlike Rule 3.850. The court also found that even if Jordan's allegations about prison officials' actions were true, lack of law library access does not excuse late filing because a simple notice of appeal does not require such access.
[1] An order denying relief under Rule 3.850, Florida Rules of Criminal Procedure, must contain notice of the right to appeal and the time limit for filing a notice.
[2] A rule that does not expressly contain language regarding notice of the right to appeal does not require such notification in its denial orders.
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Join FLexlaw to unlock all legal intelligence“Rule 3.850, Florida Rules of Criminal Procedure, expressly requires that an order denying relief contain such notice. Omission of the language will support a belated appeal”
Establishes that notice requirements exist under Rule 3.850 but not under other rules
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Join FLexlaw to unlock all legal intelligenceJordan received the circuit court's order denying his motion to correct sentence on or about November 5, 1988. He was incarcerated at Marion Correctio…
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PER CURIAM.
Leroy Jordan seeks review of an order of Circuit Court rendered October 21, 1988, which denied his motion to correct sentence. When we noted that the notice of appeal was not filed until December 13, we directed Jordan to show cause why this appeal should not be dismissed for lack of jurisdiction as untimely filed.1 His response reads in pertinent part as follows:
1. Appellant received the order denying his motion to correct his illegal sentence on or about November 5, 1988.
2. At that time, the appellant was as- ' signed to the Marion Correctional Camp where there is no law library.
3. Appellant requested to be sent to the main facility at Marion so he could file a notice of appeal.
4. Since the order denying appellant’s motion did not state there was a 30 day time limit, the work camp refused to transport him to the law library.
5. The appellant complained to the prison officials but they did not let him go to the law library until the next regularly scheduled time which was the 10th of December, 1988.
6. Notwithstanding this, the interest of justice will be served by allowing this appeal to proceed and by appointing counsel to perfect it.
Thus, as we understand his contentions, appellant asks this court to excuse his late notice of appeal on either one of two grounds, that the order of the circuit court failed to notify him of his right to an appeal and the time limit for filing a notice, or that the actions of prison officials prevented him from filing a timely notice.2
First, as to his right to be notified of his right to appeal, Rule 3.850, Florida Rules of Criminal Procedure, expressly requires that an order denying relief contain such notice. Omission of the language will support a belated appeal, State ex rel. Shevin v. District Court of Appeal, Third District, 316 So. 2d 50 (Fla.1975). Jordan, however, sought relief in the lower court pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure. That rule does not contain language similar to that in Rule 3.850 regarding notice of a right to appeal and we decline to extend the requirement to Rule 3.800 where it is not expressly contained therein.3 Thus, we find this lack of notification in the order does not excuse the failure to timely file a notice of appeal.
We also find that Jordan’s allegations of the actions of prison officials, even if taken as true, fail to demonstrate a right to belated appeal. We do not believe that access to a .law library is necessary to prepare and transmit a simple notice of appeal.
Determining that the notice of appeal was untimely and Jordan has made no showing of entitlement to a belated appeal, we dismiss this appeal for lack of jurisdiction.
SHIVERS, C.J., and WENTWORTH and WIGGINTON, JJ., concur. . The failure to timely file a notice of appeal is a jurisdictional defect, Benz v. State, 346 So. 2d 1081 (Fla. 1st DCA 1977).
. The writ of habeas corpus to secure a belated appeal is available under certain circumstances to, in effect, excuse the late filing of a notice. State v. Meyer, 430 So. 2d 440 (Fla.1983); Baggett v. Wainwright, 229 So. 2d 239 (Fla.1969).
.We are unaware of any decision that holds an unsuccessful applicant for other collateral relief, such as a petitioner for the writ of habeas corpus, must be notified of his right to appeal in the order of denial.
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Barnard v. State, 789 So. 2d 1114 (Fla. 1st DCA 2001)…PER CURIAM. DENIED. Jordan v. State, 549 So. 2d 805 (Fla. 1st DCA 1989); Peterson v. State, 746 So. 2d 1208 (Fla. 1st DCA 1999). BARFIELD, C.J., KAHN and PADOVANO, JJ., concur.…
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G.L.S. v. Dep't of Child. & Families, 700 So. 2d 96 (Fla. 1st DCA 1997)…ppellant did not timely file a notice of appeal from that order, this Court is without jurisdiction to review it at this juncture. See Williams v. State, 324 So. 2d 74 (Fla.1975)(timely filing of notice of appeal is jurisdictional); Jordan v. State, 549 So. 2d 805 (Fla. 1st DCA 1989). Accordingly, the appeal from the Termination Order is dismissed. Such dismissal is without prejudice to appellant’s right to apply to the trial court for a belated appeal pursuant to a petition for writ of habeas corpus. See In…
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Sherrill B. Turner v. State, 588 So. 2d 1042 (Fla. 5th DCA 1991)…endant in Thames, who “could” have contacted the public defender’s office, as the attorney there suggested. The real issue in both cases is the performance of counsel, not appellant’s failure to “transmit a simple notice of appeal.” Jordan v. State, 549 So. 2d 805, 806 (Fla. 1st DCA 1989). We find that the trial counsel’s failure to timely file a notice of appeal when, finally, requested to do so by his client constitutes ineffective assistance of counsel as a matter of law. Meyer; Thames. Therefore, we reve…
Previewing 3 of 68 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)
- State v. Meyer, 430 So. 2d 440 (Fla. 1983)
- State of Fla. ex rel. Robert L. Shevin v. The Dist. Court OF Appeal of Fla., 316 So. 2d 50 (Fla. 1975)
- Benz v. State, 346 So. 2d 1081 (Fla. 1st DCA 1977)
- Trainer v. State, 346 So. 2d 1081 (Fla. 1st DCA 1977)