JERRY ROZAR, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Rozar petitioned for a belated appeal of a trial court's order denying his Rule 3.850 motion, claiming he had timely prepared and delivered a notice of appeal to the Department of Corrections for mailing but it was never received. The appellate court granted the petition, finding that Rozar established his right to a belated appeal under the mailbox rule.
The court held that Rozar established his right to a belated appeal. The court granted the writ of habeas corpus and directed that the appellate order, when received by the trial court, shall serve as a timely notice of appeal.
[1] A prisoner's sworn allegations regarding the mailing of a notice of appeal, when not denied by the state, may be sufficient to establish the mailing under the mailbox rul…
[2] A notice of appeal is considered mailed under the mailbox rule when it is given to the Department of Corrections for mailing.
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 intelligence“Rozar has established his right to a belated appeal.”
The court's conclusion that Rozar satisfied the requirements for a belated appeal under the mailbox rule.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRozar prepared a notice of appeal on May 13, 1997, and allegedly had it notarized and left with the Department of Corrections for mailing on that date…
The full statement of facts, procedural history, and disposition for this case are member content.
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W. SHARP, Judge.
Rozar petitions for belated appeal of the circuit court’s order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. He alleges in his sworn petition that he prepared a notice of appeal of the circuit court’s order, had it notarized on May 13, 1997, and left it with the Department of Corrections to be mailed on that date. However, no notice was ever received by the circuit court, or this court, the attorney general, or the state attorney.
Attached to the petition is a copy of the notice of appeal, signed by Rozar on May 13, 1997, but not notarized. Also attached is an inmate request form in which Rozar states he had a notice of appeal notarized with four envelopes, and asks the date action was taken on his request. The Department responded: “The only date in May I have for you is May 13,1997.”
We directed the state to file a response to this petition. The state did not deny the truth of the facts set forth in Rozar’s petition. Rather, it argued that Rozar failed to affirmatively show his notice was actually mailed by the Department or that he took the necessary precautions to ensure the notice would be mailed.
Rozar filed a response in which he pointed out that the notice of appeal was notarized and turned over to the Department for mailing. That constituted mailing under the “mailbox rule,” based on established Florida case law.1 He also attached a second inmate request form in which the Department indicated his legal work was notarized on May 13, 1997, but that there is no way to state exactly what the document notarized was, because legal matters are deemed personal, and the only notation made on the record is the inmate’s name, date and the Department of Corrections number. However, the Department also indicated that Rozar had legal documents notarized on May 13, 1997, and mailed by the mail room staff.
Based on these sworn allegations by Ro-zar, the response by the Department of Corrections, and the failure of the state to deny the veracity of the facts set forth, we do not think that an evidentiary hearing is required. Rozar has established his right to a belated appeal.
Accordingly, we grant the writ of habeas corpus. We forward a copy of this order to the trial court, which when it is received, shall serve as a timely notice of appeal.
Petition for Writ of Habeas Corpus GRANTED.
GOSHORN and ANTOON, JJ., concur. . Haag v. State, 591 So. 2d 614 (Fla.1992).
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Citator
Cited By
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Elton Rumph v. State, 746 So. 2d 1249 (Fla. 1st DCA 1999)…hat a copy of the order being appealed was not timely received, or that a notice of appeal mailed by an incarcerated defendant was never received by the lower tribunal. See, e.g., Battles v. State, 739 So. 2d 740 (Fla. 1st DCA 1999); Rozar v. State, 701 So. 2d 1201 (Fla. 5th DCA 1997). In light of the special master’s finding in this case that Rumph timely attempted to communicate a desire to appeal to his counsel, we find that counsel’s failure to initiate an appeal because he did not receive his client’s cor…
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Linville v. State, 260 So. 3d 440 (Fla. 5th DCA 2018)…e sworn assertion that the notice was delivered for mailing on that date. Accordingly, the date affixed to the notice is the date of filing, irrespective of when or even whether the notice was ultimately received by the lower court. Rozar v. State , 701 So. 2d 1201, 1202 (Fla. 5th DCA 1997). Although the reason the notice here never made its way to the clerk's docket cannot be discerned [*443] from this record, it makes no difference who in the delivery chain was at fault because the "bright-line" rule removes…
Authorities Cited
- State v. Thurston McCLAIN, 591 So. 2d 614 (Fla. 1992)
- Haag v. State, 591 So. 2d 614 (Fla. 1992)