CLEOPHUS JACKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that an untimely motion for rehearing does not toll the time for appealing an original order, and a notice of appeal filed before a ruling on a motion for rehearing is deemed an abandonment of that motion.
[1] A motion for rehearing is untimely if filed after the time for filing such a motion has expired.
[2] A notice of appeal filed before a ruling on a motion for rehearing is deemed an abandonment of that motion.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceCleophus Jackson appealed the summary denial of his motion for postconviction relief, which argued a double jeopardy issue. He filed a second motion f…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Abandonment Of Motion cases and more on FLexlaw
[*1039] PER CURIAM.
Cleophus Jackson appeals the summary denial of his motion for postconviction relief. We dismiss the appeal.
Jackson’s original motion, filed in November, 1989, argued a double jeopardy issue (multiple convictions and sentences for trafficking, sale, and possession of the same drug). See State v. Smith, 547 So. 2d 613 (Fla.1989); Carawan v. State, 515 So. 2d 161 (Fla.1987). The supreme court has recently held that Carawan and its progeny were not intended to apply retroactively. State v. Glenn, 558 So. 2d 4 (Fla. 1990). Jackson’s convictions became final before Carawan. The trial court denied the motion December 6, 1989. Then, on January 18, 1990, Jackson filed a “motion for clarification of ruling and evidentiary hearing.” From the record before us it is not possible to determine when, or whether, this second motion was ruled upon.1 In any event, the second motion is more properly characterized as a motion for rehearing, and as such is untimely.2
Assuming Jackson filed his notice of appeal before the trial court ruled on his motion for rehearing, he is deemed to have abandoned that motion. State ex rel. Owens v. Pearson, 156 So. 2d 4 (Fla.1963); Brumlik v. Catalyst Inc., 463 So. 2d 240 (Fla. 5th DCA 1984). Furthermore, the untimely request for rehearing did not toll the time for appealing the original December 6 order. Finally, if the motion filed January 18 were treated as a separate proceeding, the trial court would have been authorized to deny it as a successive motion. See, e.g., Ferro v. State, 510 So. 2d 339 (Fla.2d DCA 1987).
Appeal dismissed.
DANAHY, A.C.J., and LEHAN and ALTENBERND, JJ., concur. . The notice of appeal, which was filed July 23, 1990, does not comply with Florida Rule of Appellate Procedure 9.110(d) in that it fails to specify the rendition date of the order being appealed.
. "The prisoner may file a motion for rehearing of any order denying a motion under this rule within fifteen days of the date of service of the order.” Fla.R.Crim.P. 3.850.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
In re Forfeiture OF $104 v. Metro Dade Police Dep't, 578 So. 2d 727 (Fla. 3d DCA 1991)…ms and applies today. Ferrara v. Belcher Indus., Inc., 483 So. 2d 477 (Fla. 3d DCA 1986); SAC Constr. Co., Inc. v. Eagle Nat’l Bank of Miami, 449 So. 2d 301 (Fla. 3d DCA 1984); In re One Chevrolet Blazer, 436 So. 2d at 1088; accord Jackson v. State, 570 So. 2d 1038 (Fla. 2d DCA 1990); Brumlik v. Catalyst, Inc., 463 So. 2d 240 (Fla. 5th DCA 1984); Griffith v. State, 435 So. 2d 398 (Fla. 2d DCA 1983); see also The Florida Star v. B.J.F., 499 So. 2d 883 (Fla. 1st DCA 1986), review denied, 509 So. 2d 1117 (Fla.198…
-
Miffin v. State, 615 So. 2d 745 (Fla. 2d DCA 1993)…DCA 1991), rev. denied, 613 So. 2d 5 (Fla.1992). In any event Miffin filed his notice of appeal before the trial court could rule on his motion for rehearing. Accordingly, the motion for rehearing is deemed to have been abandoned. Jackson v. State, 570 So. 2d 1038 (Fla. 2d DCA 1990), rev. dismissed, 581 So. 2d 165 (Fla.1991).…
-
Jones v. State, 656 So. 2d 969 (Fla. 5th DCA 1995)…PER CURIAM. DISMISSED. See Jackson v. State, 570 So. 2d 1038 (Fla. 2d DCA 1990), cause dismissed, 581 So. 2d 165 (Fla.1991). HARRIS, C.J., and COBB and PETERSON, JJ., concur.…
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- State v. Smith, 547 So. 2d 613 (Fla. 1989)
- State v. Glenn, 558 So. 2d 4 (Fla. 1990)
- State of Fla. ex rel. Eugene W. Owens v. Honorable Tillman Pearson, 156 So. 2d 4 (Fla. 1963)
- Alfio Ferro v. State, 510 So. 2d 339 (Fla. 2d DCA 1987)
- Brumlik v. Catalyst Inc., 463 So. 2d 240 (Fla. 5th DCA 1984)