ROBERT A. LYKINS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT; ROBERT A. LYKINS, PETITIONER, V. STATE OF FLORIDA, RESPONDENT
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The court dismissed an untimely appeal and denied a petition for belated appeal, directing the petitioner to seek relief from judgment in the trial court under Florida Rule of Civil Procedure 1.540(b).
A party seeking to appeal an order based on late receipt must first move the trial court for relief from judgment under Florida Rule of Civil Procedure 1.540(b) rather than appealing directly.
[1] A party claiming late receipt of a trial court order must seek relief from judgment under Florida Rule of Civil Procedure 1.540(b) in the trial court before appealing to…
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Join FLexlaw to unlock all legal intelligenceLykins filed a habeas corpus petition in circuit court that was denied on June 9, 2000. He filed a notice of appeal on August 31, 2000, claiming he di…
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PER CURIAM.
Robert A. Lykins filed a petition for writ of habeas corpus in the Circuit Court for Gulf County which was denied by order of June 9, 2000. He filed a notice of appeal on August 31, 2000, which was assigned this court’s case number 1D00-3464. In response to a sua sponte show cause order regarding timeliness of the notice of appeal, Lykins contends that he did not receive a copy of the circuit court’s order until more than 30 days after it had issued.
In this court’s case number 1D00-3212, Lykins petitions for a belated appeal of the order denying habeas corpus, relying on the same theory that serves as the basis for his response to the show cause order on jurisdiction in case number 1D00-3464.
The appropriate remedy is for Lykins to move the trial court for relief from judgment in accordance with Florida Rule of Civil Procedure 1.540(b). Powell v. Florida Department of Corrections, 727 So. 2d 1103 (Fla. 1st DCA 1999). Accordingly, we dismiss the appeal in case number 1D00-3464 and deny the petition for belated appeal in case number 1D00-3212, but do so without prejudice to Lykins’ right to move the trial court for relief from judgment.
APPEAL DISMISSED; PETITION FOR BELATED APPEAL DENIED.
JOANOS, WOLF and BENTON, JJ., concur.
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Citator
Authorities Cited
- Powell v. Fla. Dep't OF Corr. & Fla. Parole Comm'n, 727 So. 2d 1103 (Fla. 1st DCA 1999)