EDWARD SIMMONS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appeal must be dismissed because the notice of appeal was untimely filed. A motion for rehearing in a rule 3.800(a) proceeding does not toll the time for filing an appeal.
Simmons filed a motion under Fla. R. Crim. P. 3.800(a), which the trial court denied. Simmons then filed a motion for rehearing, which was also denied…
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W. SHARP, Judge.
Simmons appeals from an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We dismiss this appeal because it is untimely. Accord ingly, this court lacks jurisdiction to determine the appeal on the merits. See Fla. R.App. P. 9.100(b).
In this ease, the trial court denied Simmons’ motion on July 17, 1996. Simmons filed a motion for rehearing which was signed on July 28, 1996, and filed in the lower court on August 2, 1996. The trial court denied the motion for rehearing on August 13,1996. Simmons filed his notice of appeal (under the mail box rule) on September 1,1996.
The notice of appeal was not filed within 30 days of the trial court’s denial of Simmons’ rule 3.800(a) motion. Assuming that Simmons’ motion for rehearing was timely filed, it nonetheless did not toll the 30 day time period in which to file a notice of appeal. We have held that a motion for rehearing in a rule 3.800(a) proceeding does not toll the time in which to appeal because it is not authorized and therefore does not have a tolling effect. See Gaylord v. State, 678 So. 2d 481 (Fla. 5th DCA 1996); Mathis v. State, 674 So. 2d 209 (Fla. 5th DCA 1996); Simmons v. State, 657 So. 2d 1283 (Fla. 5th DCA 1995); Kosek v. State, 640 So. 2d 1127 (Fla. 5th DCA 1994). This is in contrast with motions for rehearing filed in rule 3.850 cases.1
Unlike rule 3.850, rule 3.800 does not require the trial court to advise a movant that he or she has but 30 days in which to file an appeal. Thus the absence of such a notice in this case in the trial court’s order does not entitle Simmons to file a belated appeal. Compare Owens v. State, 668 So. 2d 715 (Fla. 5th DCA 1996). These are discrepancies in the rules which perhaps should be addressed by the Florida Supreme Court and rules committees, but they are beyond the competency of this court to remedy.
DISMISSED.
PETERSON, C.J., and HARRIS, J., concur. . See Fla. R.Crim. P. 3.850(a) and Fla. R.App. P. 9.020(g).
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Citator
Cited By (11 total)
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Amendments to the Florida Rules of Criminal Procedure, 886 So. 2d 197 (Fla. 2004)…olding that because the motion for rehearing filed in the 3.800 proceeding did not toll the time for filing a notice of appeal, the appeal would be dismissed as untimely); Bischel v. State, 712 So. 2d 432 (Fla. 2d DCA 1998) (same); Simmons v. State, 684 So. 2d 860 (Fla. 5th DCA 1996) (same, but noting the inconsistency between rules 3.800 and 3.850). We have further modified the original proposal to clarify that a motion for rehearing may be filed on an order entered under both subdivisions (a) (illegal sente…
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Dunbar v. State, 688 So. 2d 993 (Fla. 5th DCA 1997)…). Omission of this statement may entitle a defendant to a belated appeal of the order denying relief. Green v. State, 681 So. 2d 1215 (Fla. 5th DCA 1996). However, there is no such requirement for denials of Rule 3.800(a) motions. Simmons v. State, 684 So. 2d 860 (Fla. 5th DCA 1996); Jordan v. State, 549 So. 2d 805 (Fla. 1st DCA 1989). Petition for Writ of Habeas Corpus DENIED. GRIFFIN and THOMPSON, JJ., concur.…
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Xaviar Walker v. State, 863 So. 2d 355 (Fla. 1st DCA 2003)…Procedure 3.170(i), and his motion to modify sentence was filed pursuant to rule 3.800. Unlike rule 3.850, neither rule 3.170(i) nor rule 3.800 required the circuit [*356] court to advise Walker of his appellate rights. See, e.g., Simmons v. State, 684 So. 2d 860 (Fla. 5th DCA 1996)(holding that Simmons was not entitled to a belated appeal because an order denying a rule 3.800 motion does not have to advise a movant of his appellate rights). Accordingly, Walker is not entitled to a belated appeal. DENIED.…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kosek v. State, 640 So. 2d 1127 (Fla. 5th DCA 1994)
- Taylor v. State, 640 So. 2d 1127 (Fla. 1st DCA 1994)
- Nagy v. State, 657 So. 2d 1283 (Fla. 5th DCA 1995)
- M.H.M. v. State, 668 So. 2d 715 (Fla. 5th DCA 1996)
- Gaylord v. State, 678 So. 2d 481 (Fla. 5th DCA 1996)
- Mathis v. State, 674 So. 2d 209 (Fla. 5th DCA 1996)