FLOYD SPIVEY
v.
STATE OF FLORIDA
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Floyd Spivey petitioned for a belated appeal after receiving a final order denying his Rule 3.850 motion with only twelve days remaining to file a notice of appeal. He claimed that prison law library restrictions prevented timely filing. The Florida District Court of Appeal, First District, denied the petition, holding that access to a prison law library is not necessary to file a simple notice of appeal.
The petition for belated appeal is denied on the merits. Access to a prison law library is not necessary to prepare and transmit a simple notice of appeal, and lack of access does not demonstrate a right to a belated appeal.
[1] Access to a prison law library is not necessary to prepare and transmit a simple notice of appeal.
[2] Lack of access to a prison law library does not demonstrate a right to a belated appeal when the inmate had the means to prepare and mail a notice of appeal.
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Join FLexlaw to unlock all legal intelligence“access to a prison law library is not "necessary to prepare and transmit a simple notice of appeal" and lack of that access did not demonstrate "a right to [a] belated appeal"”
The court's primary holding rejecting Spivey's claim that law library restrictions prevented timely filing
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Join FLexlaw to unlock all legal intelligenceSpivey received a final order denying his Rule 3.850 motion with only twelve days left to file a notice of appeal. He claimed that then-existing restr…
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PER CURIAM.
The petition for belated appeal is denied on the merits. See Jordan v. State, 549 So. 2d 805 (Fla. 1st DCA 1989) (holding that access to a prison law library is not “necessary to prepare and transmit a simple notice of appeal” and lack of that access did not demonstrate “a right to [a] belated appeal”). KELSEY and WINOKUR, JJ., concur; MAKAR, J., concurs with opinion.
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Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________
MAKAR, J., concurring with opinion.
Floyd Spivey claims that he received the final order denying his Rule 3.850 motion with only twelve days left to file a notice of appeal and that then-existing restrictions on access to the prison law library made it impossible to do so. He says that limited access was permitted after grievances were filed, but only if inmates demonstrated a court ordered deadline was pending and that the lack of access was beyond his control and interfered with his ability to file a timely notice. Jordan v. State, 549 So. 2d 805 (Fla. 1st DCA 1989), which precludes a belated appeal under these circumstances, appears to be based on the belief that access to a law library is unnecessary to prepare and file a notice of appeal, which requires only a sheet of paper, a pen, an envelope and a stamp, i.e., items presumably available to inmates without law library access. Spivey does not claim that the prison law library is the only location where the forms, envelopes, and postage for preparing and mailing a notice of appeal and other legal filings are available. If that were the case, it would be difficult to justify applying Jordan to deny a belated appeal.
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Floyd Spivey, pro se, Petitioner. Ashley Moody, Attorney General, Tallahassee, for Respondent.