DARRYL ALLEN GRIFFIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Darryl Griffis appealed the denial of his Rule 3.800 motion seeking sentence correction. The appellate court dismissed the appeal for lack of jurisdiction because Griffis's notice of appeal was untimely, as his motion for rehearing on the 3.800 denial lacked clear authorization under the rules and therefore did not extend the deadline to file a notice of appeal.
The appeal must be dismissed for lack of jurisdiction because the motion for rehearing on a Rule 3.800 order lacks clear authorization under the rules and therefore did not postpone rendition of the order, making the June 18 notice of appeal untimely as to the February 27 order.
[1] A motion for rehearing is not authorized on an order disposing of a motion filed pursuant to Florida Rule of Criminal Procedure 3.800.
[2] An unauthorized motion for rehearing does not postpone the rendition of an order for purposes of calculating the time to file a notice of appeal.
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Join FLexlaw to unlock all legal intelligence“where there has been filed in the lower tribunal an authorized and timely motion for ... rehearing ... the order shall not be deemed rendered until disposition thereof”
Establishes the general rule that timely and authorized rehearing motions extend the appeal deadline by postponing rendition of the order.
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Join FLexlaw to unlock all legal intelligenceGriffis filed a Rule 3.800 motion in the trial court seeking correction of an allegedly illegal sentence. The motion was denied on February 27, 1991. …
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PER CURIAM.
Darryl Griffis filed a motion in the lower tribunal pursuant to Florida Rule of Criminal Procedure 3.800, seeking correction of his allegedly illegal sentence. The motion was denied on February 27, 1991. Griffis filed a motion for rehearing on March 8 which was denied by order filed June 5. The notice of appeal was filed with the clerk of the lower tribunal on June 18, 1991.
Appellee moves for dismissal of this appeal, arguing that the order to be reviewed in this case is the denial of the 3.800 motion, not denial of the motion for rehearing. Thus, according to appellee, the notice of appeal was untimely and this court lacks jurisdiction over this appeal. Appellant opposes dismissal, essentially arguing that his motion for rehearing postponed the time for filing the notice of appeal.
We find that this appeal should be dismissed, although not for the reasons advanced by appellee. A notice of appeal must, of course, be filed with the clerk of the lower tribunal within 30 days of rendition of an order in order to invoke appellate jurisdiction.
Nevertheless, “[wjhere there has been filed in the lower tribunal an authorized and timely motion for ... rehearing ... the order shall not be deemed rendered until disposition thereof.” Fla. R.App.P. 9.020(g). If appellant’s motion for rehearing was both timely and authorized, it would postpone rendition of the order and his notice of appeal would be timely. The motion for rehearing was filed 9 days after filing of the order and was clearly timely under any applicable standard.
We find, however, no authority for a motion for rehearing on an order disposing of a 3.800 motion.
Rule 3.800 itself and the Florida Rules of Criminal Procedure in general are silent on the question, in contrast to Rule 3.850 which expressly provides for rehearing motions. In the absence of clear authorization for a motion for rehearing, the motion did not postpone rendition of the order. See In the Interest of E.P., 544 So. 2d 1000 (Fla.1989); Longo v. Longo, 515 So. 2d 1013 (Fla. 1st DCA 1987). It therefore follows that the notice of appeal filed on June 18, 1991, was untimely as to the order of February 27, and this court lacks jurisdiction of this cause.
Accordingly, we grant the motion and dismiss the appeal.
WIGGINTON, ALLEN and WOLF, JJ., concur.
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Citator
Cited By (37 total)
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Kosek v. State, 640 So. 2d 1127 (Fla. 5th DCA 1994)…ial of Michael A. Kosek’s motion pursuant to Florida Rule of Criminal Procedure 3.800. His post-denial motions did not toll the time for filing his appeal and he did so untimely. Ketion v. State, 599 So. 2d 282 (Fla. 1st DCA 1992); Griffis v. State, 593 So. 2d 308 (Fla. 1st DCA 1992); Newman v. State, 610 So. 2d 455 (Fla. 4th DCA 1992). DISMISSED. HARRIS, C.J., and PETERSON and DIAMANTIS, JJ., concur.…
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Letarius Mathis v. State, 720 So. 2d 1116 (Fla. 5th DCA 1998)…not authorized, and they do not toll the time for filing a notice of appeal. See, e.g., Kosek v. State, 640 So. 2d 1127 (Fla. 5th DCA), rev. dismissed, 648 So. 2d 723 (Fla.1994); Newman v. State, 610 So. 2d 455 (Fla. 4th DCA 1992); Griffis v. State, 593 So. 2d 308 (Fla. 1st DCA 1992). Thus, Mathis’ appeal is untimely. We have previously pointed out this “trap” for the unwary, but until the rules are changed, we are bound by established precedent. Since Mathis’ appeal is untimely, we lack jurisdiction to con…
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Jones v. State, 635 So. 2d 989 (Fla. 1st DCA 1994)…rendered on July 16, 1993, and appellant did not mail his notice of appeal until August 31, 1993, the appeal is untimely and must be dismissed for lack of jurisdiction. See, e.g., Ketion v. State, 599 So. 2d 282 (Fla. 1st DCA 1992); Griffis v. State 593 So. 2d 308 (Fla. 1st DCA 1992). APPEAL DISMISSED. BOOTH, WOLF and WEBSTER, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In the Interest of E.P. v. Dep't of Health & Rehabilitative Servs., 544 So. 2d 1000 (Fla. 1989)
- Longo v. Longo, 515 So. 2d 1013 (Fla. 1st DCA 1987)