AUBREY BARKER FUNCHESS, PETITIONER,
v.
MICHAEL W. MOORE, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT
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The court held that a petitioner is entitled to a belated appeal when they did not receive the order denying postconviction relief until after the appeal period expired.
Petitioner sought a belated appeal, alleging he did not receive the order denying his motion for postconviction relief until after the time for filing…
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PER CURIAM.
Aubrey Barker Funchess seeks a belated appeal from an order which denied his motion for postconviction relief. According to petitioner, he did not receive a copy of the order until after the time for filing a notice of appeal had expired. His factual allegations are made under oath and supported by the mailroom records of the correctional institution where he is serving his sentence.
In response to an order to show cause, the state suggests that the appeal should be dismissed without prejudice to the petitioner’s right to move the trial court for relief from judgment. See Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983). As that remedy, however, is predicated on Florida Rule of Civil Procedure 1.540(b), which is not applicable to this collateral criminal proceeding, see Florida Rule of Civil Procedure 1.010, and because the Florida Rules of Criminal Procedure do not contain a counterpart to Rule 1.540(b), we reject the state’s suggestion. As the response otherwise does not attempt to refute the petitioner’s entitlement to relief, we grant the petition.
Aubrey Barker Funchess is hereby granted a belated appeal from the order of December 13, 1999, which denied postcon-viction relief in Gulf County case number 96-23. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the trial court to be treated as a notice of appeal. Fla. R.Apn. P. 9.140(j)(5)(D).
PETITION GRANTED.
ALLEN, LAWRENCE and BENTON, JJ., concur.
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Brigham v. State, 769 So. 2d 1100 (Fla. 1st DCA 2000)…y to obtain belated appeal from an order denying a rule 3.850 motion is to file a motion pursuant to a rule of civil procedure. We find that the reliance on Brown, Snelson and Dempsey in support of this argument is misplaced. See, Funchess v. Moore, 766 So. 2d 348 (Fla. 1st DCA 2000). In Brown, petitioner sought to obtain belated appeal from an order denying a petition for writ of habeas corpus. The remedy of habeas corpus is civil in nature. See, generally, State v. Buchanan, 191 So. 2d 33 (Fla.1966); Florid…
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Peterson v. W. Fla. Cmty. Care Ctr., 773 So. 2d 660 (Fla. 1st DCA 2000)…PER CURIAM. The petition for belated appeal is denied without prejudice to petitioner’s right to seek relief in the lower tribunal in accordance with Florida Rule of Civil Procedure 1.540(b). See Funchess v. Moore, 766 So. 2d 348 (Fla. 1st DCA 2000); Powell v. Florida Department of Corrections, 727 So. 2d 1103 (Fla. 1st DCA 1999). LAWRENCE, DAVIS and VAN NORTWICK, JJ., concur.…
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GAY v. State, 789 So. 2d 517 (Fla. 1st DCA 2001)…ing considered appellant’s response to this Court’s show cause order of October 3, 2000, the appeal is dismissed without prejudice to appellant’s right to file a petition for belated appeal pursuant to Fla. R.App. P. 9.140(j). See Funchess v. Moore, 766 So. 2d 348 (Fla. 1st DCA 2000); Brigham v. State, 769 So. 2d 1100 (Fla. 1st DCA 2000). DISMISSED. BARFIELD, DAVIS and LEWIS, JJ.,' CONCUR.…
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- Snelson v. Snelson, 440 So. 2d 477 (Fla. 5th DCA 1983)