MICHAEL ALTERISIO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's appeal must be dismissed because the notice of appeal was filed too late.
The defendant appealed the denial of his motion for postconviction relief. He filed a motion for rehearing which was denied, and then filed his notice…
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ANTOON, Judge.
Michael Alterisio, the defendant, appeals the denial of his motion for postconviction relief which was filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We dismiss this appeal because the notice of appeal was filed more than thirty days after rendition of the trial court’s order. The issue presented in this case is whether the defendant tolled the thirty-day period for filing an appeal by filing a motion for rehearing. The trial court’s order denying relief contains a certificate showing June 13, 1997 as the date of service. The defendant filed his motion for rehearing on July 7, 1997. The motion was denied on September 9, 1997. Pursuant to rule 3.850(g), a motion for rehearing must be filed within fifteen days of the date of service of an order denying postconviction relief. See Fla. R.Crim. P. 3.850(g). If the motion is timely filed, the time for appeal is tolled. See Fla. R.App. P. 9.020(h). The defendant’s motion for rehearing was not notarized and did not contain a certificate of service. Consequently, this court cannot determine whether the defendant was entitled to the benefit of the mailbox rule established in Haag v. State, 591 So. 2d 614 (Fla.1992) (motion is considered filed when placed in the hands of prison officials.)
This court issued an order to show cause to the defendant why this appeal should not be dismissed as untimely. In his unsworn response, the defendant failed to tender any evidence establishing when his motion for rehearing was given to prison officials. Rather he merely asserted that delivery of the motion to prison officials was timely. Thus, the defendant has failed to meet his burden of proving that the motion for rehearing was timely presented to prison officials. See Haag v. State, 591 So. 2d at 617, n. 3.
APPEAL DISMISSED.
GRIFFIN, C.J., and GOSHORN, J, concur.
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Iven B. Jones, III v. State, 838 So. 2d 659 (Fla. 5th DCA 2003)…post-conviction relief and did not toll the time for taking an appeal. As a result, Jones’s notice of appeal, which was entrusted to prison officials for mailing on December 15, 2002, was untimely. The appeal is dismissed.1 See Alterisio v. State, 704 So. 2d 164 (Fla. 5th DCA 1997); Childs v. State, 649 So. 2d 349 (Fla. 1st DCA 1995). APPEAL DISMISSED. ORFINGER and MONACO, JJ., concur. . In his motion for rehearing, Jones claimed that he did not timely receive the order denying his 3:850 motion. Jone…
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Neal v. State, 915 So. 2d 746 (Fla. 5th DCA 2005)…2005. Because the motion for rehearing was filed more than fifteen days after service of the order, it was untimely and did not toll the time for taking an appeal. See generally, Fla. R.Crim. P. 3.850(g); Fla. R.App. P. 9.020(h); Alterisio v. State, 704 So. 2d 164 (Fla. 5th DCA 1997). Neal’s notice of appeal was not filed under the mail box rule until September 14, 2005, long after the running of the thirty days required for affording an appellate court jurisdiction over an appeal.2 Neal argues that the pris…
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Mercer v. State, 876 So. 2d 703 (Fla. 5th DCA 2004)…PER CURIAM. DISMISSED. See generally Griffin v. Sistuenck, 816 So. 2d 600 (Fla.2002); Jones v. State, 838 So. 2d 659 (Fla. 5th DCA 2003) and Alterisio v. State, 704 So. 2d 164 (Fla. 5th DCA 1997). PETERSON, GRIFFIN and ORFINGER, JJ., concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Thurston McCLAIN, 591 So. 2d 614 (Fla. 1992)
- Haag v. State, 591 So. 2d 614 (Fla. 1992)