DANIEL MCMAHON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a case is inappropriate for review under Florida Rule of Appellate Procedure 9.140(g) if the underlying motion was not filed pursuant to Florida Rule of Criminal Procedure 3.850.
[1] Review pursuant to Florida Rule of Appellate Procedure 9.140(g) is limited to orders denying post-conviction relief under Florida Rule of Criminal Procedure 3.850 without…
[2] A motion for post-conviction relief must comply with the procedural requirements of the rule under which it is filed to be eligible for review under Florida Rule of Appel…
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Join FLexlaw to unlock all legal intelligenceAppellant filed a motion for post-conviction relief under Rule 3.800(a) alleging an illegal sentence. The circuit court denied the motion, and the cle…
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PER CURIAM.
The appellant, proceeding pro se, seeks clarification of this court’s sua sponte order which determined that this case is inappropriate for review pursuant to Florida Rule of Appellate Procedure 9.140(g)1 and which ordered appellant to file a brief. We grant the request for clarification.
Appellant filed a motion for post-conviction relief in the circuit court seeking to correct an alleged illegal sentence. The motion stated that it was filed pursuant to Florida Rule of Criminal Procedure 3.800(a).2 Appellant alleged that his sentence was somehow illegal because the sentence he received was longer than various sentences which had been offered to him during plea negotiations with the State. Appellant’s motion did not state what sentence he actually received nor whether the sentence was the result of a plea agreement or imposed by the court after a trial.3 The motion also failed to disclose when the sentence was imposed. The motion did not state whether appellant had filed a direct appeal or had previously sought any other post-conviction relief. The motion was not under oath. The circuit court denied appellant’s motion. This appeal ensued.
The clerk of the lower tribunal inexplicably treated appellant’s motion as a motion filed pursuant to Florida Rule of Criminal Procedure 3.8504 and prepared an abbreviated record in accordance with Rule 9.140(g). However, the record was not indexed nor were the pages numbered. This record was incorrectly prepared. See Summers v. State, 15 FLW 2083 (Fla. 1st DCA August 13,1990). In accordance with internal operating procedures we recently implemented, the abbreviated record was screened immediately upon receipt to determine if review was appropriate pursuant to Florida Rule of Appellate Procedure 9.140(g). As noted, we determined the case was inappropriate for review pursuant to Rule 9.140(g) and ordered appellant to file a brief. Appellant responded with a letter to the clerk of this court5 asking the court to clarify its determination that this case is “inappropriate for review” and to “verify” if the motion was pursuant to Rule 3.800 or Rule 3.850.
Appellant is mistaken if he believes this Court has determined the case is “inappropriate for review.” What we have determined is that the case is inappropriate for review pursuant to Florida Rule of Appellate Procedure 9.140(g). That rule provides for review upon a limited record and appellant is not required to file a brief. But, as we have noted before, the availability of review pursuant to Rule 9.140(g) is very limited. Ketion v. State, 548 So. 2d 778, 779 (Fla. 1st DCA 1989). The rule, by its express terms, limits review to orders which have denied, without an evidentiary hearing, a motion for post-conviction relief filed pursuant to Rule 3.850. While under some circumstances it is possible for a prisoner to seek post-conviction relief under either Rule 3.800 or Rule 3.850, see Dowling v. State, 545 So. 2d 521, 522 (Fla. 5th DCA 1989), there are substantial substantive and procedural differences in the two rules. Id. at 522. Thus, in our opinion, appellant can only avail himself of Rule 9.140(g) if he is substantively entitled to seek post-conviction relief pursuant to Rule 3.850 and he has procedurally complied with that rule. Here, even if appellant had been substantively entitled to seek relief pursuant to Rule 3.850, which cannot be determined from this record, he did not avail himself of that remedy. Having failed to do so, he is not entitled to appeal pursuant to Rule 9.140(g). Consequently, a record on appeal which complies with Rule 9.200 is required and appellant is required to file a brief which complies with Rule 9.210. Accordingly, the clerk of the circuit court shall within 30 days from the date of this order prepare and transmit to this court a record on appeal which complies with Rule 9.200. Appellant shall within 20 days after service of the index of the record on appeal by the clerk file an initial brief with this court which complies with Rule 9.210.
SHIVERS, C.J., and JOANOS and ZEHMER, JJ., concur. . Rule 9.140(g) provides in pertinent part:
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Cited By
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Ransom v. State, 601 So. 2d 279 (Fla. 1st DCA 1992)…g the notice we, sua sponte, in accordance with our standard procedures, issued an order stating that review pursuant to Florida Rule of Appellate Procedure 9.140(g)1 was not appropriate and directed appellant to file a brief.2 See McMahon v. State, 567 So. 2d 988 (Fla. 1st DCA1990). Appellant timely filed an initial brief. [*280] After receiving a copy of the record, the State filed a motion for clarification of our order which determined that review was inappropriate pursuant to Rule 9.140(g). The basis of…
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Janes v. State, 585 So. 2d 424 (Fla. 1st DCA 1991)…with the procedural requirements applicable to all plenary appeals, including the filing of briefs. Dowling v. State, 545 So. 2d 521, 523 (Fla. 5th DCA 1989). See also Ketion v. State, 548 So. 2d 778, 779 n. 4 (Fla. 1st DCA 1989); McMahon v. State, 567 So. 2d 988 (Fla. 1st DCA 1990). Therefore, the state should not anticipate that this court will delay the disposition of appeals under Rule 3.800(a) in which reversal appears appropriate in order to give the state an opportunity to file an answer brief out of…
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Hampton v. State, 596 So. 2d 682 (Fla. 4th DCA 1992)…otion is an order entered after final judgment. Consequently, such an appeal comes within rule 9.140(b)(1)(C) and the general provisions of rule 9.140 relating to briefing and the record on appeal. We thus agree with the courts in McMahon v. State, 567 So. 2d 988 (Fla. 1st DCA 1990), and Dowling v. State, 545 So. 2d 521 (Fla. 5th DCA 1989), that there is nothing in rule 9.140 allowing the same kind of summary treatment for rule 3.800(a) orders that we give to rule 3.850 orders. Rule 9.140 plainly does not au…
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- Dowling v. State, 545 So. 2d 521 (Fla. 5th DCA 1989)
- Ketion v. State, 548 So. 2d 778 (Fla. 1st DCA 1989)