CHARLIE LEE SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charlie Lee Smith appealed the denial of his Rule 3.850 motion for postconviction relief. The appellate court dismissed the appeal for lack of jurisdiction because the trial court's denial order was not properly rendered as a written, signed document in the record, but instead merely stamped on the motion itself.
The court lacks jurisdiction because a stamped and initialed denial placed on a pleading is insufficient to constitute a properly rendered order under Florida Rules of Appellate Procedure 9.140(g) and 9.110(b). The court dismissed the appeal and remanded with directions for the trial court to enter a proper written order within twenty days.
[1] A written, signed order denying a motion for postconviction relief must be properly rendered and filed to invoke appellate jurisdiction.
[2] A stamped denial with handwritten initials on a pleading is insufficient to invoke appellate jurisdiction.
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Join FLexlaw to unlock all legal intelligence“Such similarly signed and dated stamped orders, placed on top of pleadings previously filed, have been held insufficient to invoke the appellate court's jurisdiction.”
Establishes the rule that stamped denials are not proper orders capable of being appealed.
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Join FLexlaw to unlock all legal intelligenceSmith filed a Rule 3.850 motion for postconviction relief in September 1990. The trial judge responded by stamping 'denied' on the first page of the m…
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W. SHARP, Judge.
Smith seeks to appeal from an order which summarily denied his motion for relief pursuant to Florida Rule of Criminal Procedure 3.850. Sua sponte we question whether we have jurisdiction to consider this appeal because there is apparently no written, signed order by the trial judge denying Smith’s motion, which was properly “rendered” as contemplated by Florida Rules of Appellate Procedure 9.140(g) and 9.110(b).
The motion was filed in September of 1990. The first page of the motion is stamped “denied,” with a handwritten date (10/1/90) and the judge’s handwritten initials above the stamp of his name. There is no further indication to show that this denial was ever “rendered,” i.e., filed in the record.1
Such similarly signed and dated stamped orders, placed on top of pleadings previously filed, have been held insufficient to invoke the appellate court’s jurisdiction. See Johnson v. State, 573 So. 2d 1021 (Fla. 1st DCA 1991); State v. Moore, 563 So. 2d 115 (Fla. 2d DCA 1990). Accordingly, we dismiss this appeal and remand this cause to the trial court with directions to enter within twenty days an order in a form which is properly appealable.
In order to expedite this cause and conserve judicial energy, we note that any denial of Smith’s motion should contain a statement that the movant has a right to appeal within thirty days of its rendition. Further, the clerk must promptly serve on the prisoner a copy of any order, with a notation on the order indicating the date of service on the defendant. Fla.R.Crim.P. 3.850. This was not timely done in this case as the state apparently concedes.
We note further that if jurisdiction were properly lodged in this court, we would have found Smith’s claims that his plea was entered involuntarily and that his trial counsel was ineffective stated a pri-ma facie basis for relief.2 Thus on remand, the trial judge should either hold an evidentiary hearing or attach portions of the record to refute Smith’s claims.3 Although the state has referred to some records in its response, even if the records were attached (which they were not) the state cannot cure the trial court’s failure to attach records required by rule 3.850 by attaching same in its response.4
DISMISSED and REMANDED with directions.
COWART and PETERSON, JJ., . concur. . Fla.R.App.P. 9.020(g).
. See Mikenas v. State, 460 So. 2d 359 (Fla.1984); Isley v. State, 565 So. 2d 389 (Fla. 5th DCA 1990); Smothers v. State, 555 So. 2d 452 (Fla. 5th DCA 1990); Joseph v. State, 540 So. 2d 260 (Fla. 5th DCA 1989); Ward v. State, 545 So. 2d 523 (Fla. 5th DCA 1989).
. See Kennedy v. State, 547 So. 2d 912 (Fla.1989); Gorham v. State, 521 So. 2d 1067 (Fla.1988); Squires v. State, 513 So. 2d 138 (Fla.1987); Harich v. State, 484 So. 2d 1239 (Fla.1986).
. Griffin v. State, 573 So. 2d 979 (Fla. 5th DCA 1991); Smothers v. State, 555 So. 2d 452 (Fla. 5th DCA 1990).
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Parnell v. State, 642 So. 2d 1092 (Fla. 2d DCA 1994)…apparently received this order, because he filed an appeal within thirty days, even though the order did not comply with rule 3.850(g). Appellate courts have previously discouraged the use of rubber stamps to rule upon such motions. Smith v. State, 582 So. 2d 796 (Fla. 5th DCA 1991); State v. Moore, 563 So. 2d 115 (Fla. 2d DCA 1990); State v. Green, 527 So. 2d 941 (Fla. 2d DCA 1988). An order is rendered when it is reduced to writing, signed, and filed with the clerk of the trial court. A rubber-stamped orde…
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Jenkins v. State, 603 So. 2d 641 (Fla. 5th DCA 1992)…So. 2d 595 (Fla. 4th DCA 1985). . Jenkins also relied on the fact that the order denying relief did not contain the requisite notice that he had thirty days from the rendition date of the final order denying relief to appeal, citing Smith v. State, 582 So. 2d 796 (Fla. 5th DCA 1991). The omission from the appealed order of notice of the right to appeal is, under the facts of this case, immaterial. Jenkins was not disadvantaged or prejudiced by the omissions in the order because he did not receive the order.…
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Dewayne KEY v. State, 599 So. 2d 1040 (Fla. 2d DCA 1992)…ly refute Key’s claim. Concerning these two issues only, we remand lower case number 87-9763 to the trial court. The trial court either should hold an evidentiary hearing or attach portions of the record to refute Key’s claims. See Smith v. State, 582 So. 2d 796 (Fla. 5th DCA 1991). RYDER, A.C.J., and ALTENBERND, J., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Kennedy v. State, 547 So. 2d 912 (Fla. 1989)
- Harich v. State, 484 So. 2d 1239 (Fla. 1986)
- Mikenas v. State, 460 So. 2d 359 (Fla. 1984)
- Gorham v. State, 521 So. 2d 1067 (Fla. 1988)
- Isley v. State, 565 So. 2d 389 (Fla. 5th DCA 1990)
- Squires v. State, 513 So. 2d 138 (Fla. 1987)
- State v. Moore, 563 So. 2d 115 (Fla. 2d DCA 1990)
- Griffin v. State, 573 So. 2d 979 (Fla. 5th DCA 1991)
- Smothers v. State, 555 So. 2d 452 (Fla. 5th DCA 1990)
- Elliott R. Subervi v. Hon. Jeffords D. Miller, 555 So. 2d 452 (Fla. 5th DCA 1990)