LEO C. HOLLINGSWORTH, JR., APPELLANT,
v.
MICHAEL P. SZCZECINA, SUPERINTENDENT, CENTURY CORRECTIONAL INSTITUTION AND MICHAEL W. MOORE, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, APPELLEES
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Leo Hollingsworth appeals the trial court's denial of his petition for writ of mandamus, but his notice of appeal was filed untimely. The court dismisses the appeal for lack of jurisdiction due to the civil nature of the proceedings, but does so without prejudice to allow Hollingsworth to seek relief through a Rule 1.540 motion in the trial court.
The court dismisses the appeal for lack of jurisdiction because it was untimely filed in a civil proceeding. However, the dismissal is without prejudice to Hollingsworth's right to seek relief in the trial court pursuant to Florida Rule of Civil Procedure 1.540 to vacate and re-enter the original order, thereby preserving his right to seek appellate review by certiorari petition.
[1] An appellate court lacks the authority to grant a belated appeal in civil proceedings.
[2] A notice of appeal is untimely if not filed with the trial court within the prescribed period.
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Join FLexlaw to unlock all legal intelligence“Because the proceedings below were civil in nature, this court lacks the authority to grant a belated appeal.”
Establishes the jurisdictional rule preventing appellate review of untimely filed notices in civil cases
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Join FLexlaw to unlock all legal intelligenceHollingsworth was housed in his institution's segregation unit and filed a notice of appeal on January 11, 1999, though he concedes it was not placed …
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PER CURIAM.
Leo C. Hollingsworth appeals a December 3, 1998, order of the circuit court denying his petition for writ of mandamus, and inasmuch as his notice of appeal was not filed with the trial court until January, 11, 1999, he was directed to show cause why this appeal should not be dismissed as untimely. In response, Hollingsworth forthrightly concedes that his notice of appeal was not placed in the hands of prison officials for mailing until January 7, 1999. He alleges, however, that his inability to timely mail the notice of appeal resulted from the fact that while housed in his institution’s segregation unit, he was unable to obtain necessary postage to mail the notice of appeal despite his repeated efforts to do so. On this basis, Hollings-worth requests that his appeal be permitted to proceed.
Because the proceedings below were civil in nature, this court lacks the authority to grant a belated appeal. Thus, in light of appellant’s concession that his notice of appeal was untimely, we dismiss the appeal for lack of jurisdiction. However, given the matters alleged in his response, we do so without prejudice to Hollings-worth’s right to seek relief in the trial court by motion pursuant to Florida Rule of Civil Procedure 1.540, requesting that the original order be vacated and a new order entered, such that the right to seek appellate review may be preserved. See Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983). We note for appellant’s benefit that in the event such relief is granted by the circuit court, review of the new order should be undertaken by timely petition for writ of certiorari, rather than by appeal. See Sheley v. Florida Parole Commission, 720 So. 2d 216 (Fla.1998).
BARFIELD, C.J., VAN NORTWICK and PADOVANO, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (34 total)
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Brigham v. State, 769 So. 2d 1100 (Fla. 1st DCA 2000)…civil in nature, this court lacks the authority to grant a belated appeal pursuant to Florida Rule of Appellate Procedure 9.140 and the petitioner must seek relief in the trial court by motion pursuant to rule 1.540. See, Hollingsworth v. Szczecina, 731 So. 2d 790 (Fla. 1st DCA 1999). Here, however, petitioner is seeking belated appeal of an order denying a motion for postconviction relief pursuant to rule 3.850. The proper remedy to obtain a belated appeal from an underlying proceeding pursuant to a rule of…
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Robenson v. McNEIL, 31 So. 3d 803 (Fla. 1st DCA 2009)…PER CURIAM. DISMISSED. See Fla. R.App. P. 9.110(b); Hollingsworth v. Szczecina, 731 So. 2d 790 (Fla. 1st DCA 1999) (dismissing appeal as untimely where mandamus proceedings below were civil in nature and appellate rights may be preserved by filing motion for relief in trial court); Mobley v. McNeil, 989 So. 2d 1215, 1217 (Fla. 1st DCA 2008) (…
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Montgomery v. Fla. Parole Comm'n, 965 So. 2d 834 (Fla. 1st DCA 2007)…PER CURIAM. DENIED. See Hollingsworth v. Szczecina, 731 So. 2d 790 (Fla. 1st DCA 1999). WOLF, BENTON, and HAWKES, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sheley v. Fla. Parole Comm'n, 720 So. 2d 216 (Fla. 1998)
- Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983)