STATE OF FLORIDA
v.
OSCAR ACEVEDO
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The Florida Fourth District Court of Appeal vacated its own dismissal order and reinstated the State's appeal after determining that a timely motion for rehearing under Rule 3.192 tolled the time for filing the notice of appeal, contrary to the court's initial reliance on Goodwin v. State.
A timely motion for rehearing filed under Rule 3.192 tolls rendition of the order subject to appellate review, and therefore the State's untimely notice of appeal is saved. The court's reliance on Goodwin v. State was misplaced because Rule 3.192 was enacted after Goodwin and specifically provides for this tolling mechanism.
[1] A timely filed motion for rehearing by the State tolls the rendition of an order subject to appellate review.
[2] Florida Rule of Criminal Procedure 3.192 permits the State to file a motion for rehearing within 10 days of an order subject to appellate review.
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Join FLexlaw to unlock all legal intelligence“A timely filed motion for rehearing shall toll rendition of the order subject to appellate review and the order shall be deemed rendered upon the filing of a signed, written order denying the motion for rehearing.”
Establishes the tolling provision of Rule 3.192 that saves the State's otherwise untimely appeal
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Join FLexlaw to unlock all legal intelligenceOn October 11, 2022, the court dismissed the State's appeal for lack of jurisdiction because the notice of appeal was not timely filed. The State subs…
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KUNTZ, J.
On October 11, 2022, we sua sponte dismissed the State’s appeal “for lack of jurisdiction because the notice of appeal was not timely filed.” The dismissal order cited Florida Rule of Appellate Procedure 9.140(c)(2), and quoted Goodwin v. State, 826 So. 2d 1022, 1023 (Fla. 3d DCA 2001) (“While it is true that the court has the power to reconsider an interlocutory ruling on a motion to suppress, this does not mean that the filing of such a motion tolls the time for filing an appeal.”).
The State moves for rehearing based on Florida Rule of Criminal Procedure 3.192. Rule 3.192 states, in pertinent part:
When an appeal by the state is authorized by Florida Rule of Appellate Procedure 9.140, or sections 924.07 or 924.071, Florida Statutes, the state may file a motion for rehearing within 10 days of an order subject to appellate review. A motion for rehearing shall state with particularity the points
of law or fact that, in the opinion of the state, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding . . . A timely filed motion for rehearing shall toll rendition of the order subject to appellate review and the order shall be deemed rendered upon the filing of a signed, written order denying the motion for rehearing.
Fla. R. Crim. P. 3.192.
Based on Rule 3.192, our reliance on Goodwin v. State, 826 So. 2d 1022, 1023 (Fla. 3d DCA 2001), was misplaced. Rule 3.192, enacted after Goodwin was issued, allows the State to move for rehearing and the State’s motion tolled rendition of the order appealed. As a result, we grant the State’s motion for rehearing and vacate our dismissal order. This appeal will be assigned to a merits panel for disposition.
Order vacated and appeal reinstated.
CONNER and ARTAU, JJ., concur.