ROBERT A. HIGGS, PETITIONER,
v.
STATE OF FLORIDA, ET AL., RESPONDENTS
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Robert Higgs sought habeas corpus relief claiming his appeal rights were violated when a trial court denied his motion to proceed in forma pauperis, allegedly because no appeal was timely filed. The court held that under the 'mailbox rule,' a notice of appeal is deemed filed when a prisoner turns it over to prison officials for mailing, even if the court clerk does not stamp it until after the deadline, and remanded for an evidentiary hearing to determine whether Higgs timely filed his notice of appeal.
A pro se prisoner's notice of appeal is deemed timely filed under the 'mailbox rule' when the prisoner turns the document over to prison officials for mailing within the deadline, regardless of when the court clerk stamps the document. Higgs is entitled to an evidentiary hearing to prove his allegations that he timely filed his notice of appeal.
[1] A pro se prisoner's notice of appeal is deemed filed when the prisoner entrusts the document to prison officials for mailing, under the mailbox rule.
[2] The mailbox rule, adopted from federal practice, applies to pro se prisoners' notices of appeal in Florida.
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Join FLexlaw to unlock all legal intelligence“a pro se 3.850 motion which was turned over to prison authorities for mailing within the two year limitation period is timely even if not stamped by the court clerk until after the time limit had expired”
Establishes the mailbox rule for prisoners' legal documents under Florida law as adopted in Haag v. State
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Join FLexlaw to unlock all legal intelligenceHiggs was convicted in 1988 of two counts of capital sexual battery and aggravated child abuse. He filed a 3.850 motion which was summarily denied on …
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COBB, Judge.
Petitioner, Robert Higgs, seeks a writ of habeas corpus claiming that his appeal rights in a 3.850 proceeding were violated. Higgs was convicted in 1988 for two counts of capital sexual battery and aggravated child abuse. Higgs filed a 3.850 motion, which was summarily denied on August 1, 1990. On August 13, 1990, Higgs filed a motion for rehearing which was denied by the court on August 20, 1990. Higgs alleges that on September 17, 1990, he “filed” a notice of appeal and a motion to proceed in forma pauperis. The trial court denied the motion to proceed in forma pauperis on September 26, 1990, stating that no appeal was taken within thirty days and the time had expired. Higgs contends that the trial court, by not acknowledging his timely notice of appeal, has prevented his appeal from moving forward.
Although Higgs first alleged that he filed a notice of appeal on September 17, 1990, he later alleged in the same petition that the notice of appeal was notarized and turned over to prison officials for mailing on September 17, 1990. This now appears to be a distinction without a difference since the Florida Supreme Court has adopted “the mailbox rule” in relation to the filing of prisoners’ legal documents. In Haag v. State, 591 So. 2d 614 (Fla.1992), the supreme court held that a pro se 3.850 motion which was turned over to prison authorities for mailing within the two year limitation period is timely even if not stamped by the court clerk until after the time limit had expired. Although Haag, concerned the filing of a 3.850 motion, presumably the mailbox rule would extend to notices of appeal filed by prisoners. The Florida Supreme Court, in adopting the mailbox rule, cited Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), which addressed the filing of legal documents by federal inmates. The United States Supreme Court held that under the mailbox rule, a petition or notice of appeal filed by a pro se inmate is deemed filed at the moment and time the inmate loses control over the document by entrusting its further delivery or processing to agents of the state. 108 S.Ct. at 2384.
A factual issue in the present case is whether a timely notice of appeal was filed. If Higgs’ sworn allegations are true, his notice of appeal was timely filed under the mailbox rule and he would be entitled to have his appeal processed under the summary denial procedure described in Florida Rule of Appellate Procedure 9.140(g). We therefore appoint the trial judge in this case as commissioner to conduct an evidentiary hearing to give Higgs the opportunity to prove his allegations. The trial judge shall report his findings to this court within forty-five days from the issuance of this opinion. We reserve ruling on the petition until the commissioner’s report is received.
REMANDED.
GOSHORN, C.J., and GRIFFIN, J„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Thompson v. State, 761 So. 2d 324 (Fla. 2000)…concur. . Our decision in Haag specifically concerned the filing of a postconviction motion. Subsequently, the rule was generally extended to other types of filings. See, e.g., Gonzalez v. State, 604 So. 2d 874 (Fla. 1st DCA 1992); Higgs v. State, 599 So. 2d 274 (Fla. 5th DCA 1992).…
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Higgs v. State, 601 So. 2d 319 (Fla. 5th DCA 1992)…udge. In this habeas corpus proceeding we appointed the trial judge as commissioner to determine whether under the mailbox rule1 petitioner timely appealed an order summarily denying his 3.850 motion for post-conviction relief. See Higgs v. State, 599 So. 2d 274 (Fla. 5th DCA 1992). The trial court found that petitioner’s 3.850 motion was denied August 1, 1990, and his timely motion for rehearing was denied August 20, 1990. The court further found' that petitioner’s notice of appeal was postmarked September…
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Nieves v. State, 830 So. 2d 176 (Fla. 5th DCA 2002)
Authorities Cited
- Houston v. Lack, 487 U.S. 266 (U.S. 1988)
- State v. Thurston McCLAIN, 591 So. 2d 614 (Fla. 1992)
- Haag v. State, 591 So. 2d 614 (Fla. 1992)
- Higgs v. State, 543 So. 2d 427 (Fla. 5th DCA 1989)