MICHAEL NEWELL, PETITIONER,
v.
MICHAEL W. MOORE, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT
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An inmate's petition for writ of certiorari challenging a circuit court's denial of his mandamus petition was timely filed despite the respondent's argument that an intermediate motion for rehearing was untimely. The court held that inmates are entitled to the mailbox rule for calculating filing deadlines and that the motion for rehearing timely suspended the running of the certification deadline.
The petition for writ of certiorari was timely filed. Although the motion for rehearing did not comply with the civil procedure rule, it was timely under the appellate procedure rule because inmates are entitled to use the mailbox rule for calculating filing deadlines. The motion for rehearing suspended rendition of the order, and the certification petition was filed within 30 days of the rehearing denial.
[1] An extraordinary writ proceeding in the circuit court seeking an appellate remedy is governed by the Florida Rules of Appellate Procedure.
[2] A motion for rehearing in an appellate proceeding must be filed within 15 days of the rendition of the order to which it is directed.
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Join FLexlaw to unlock all legal intelligence“An extraordinary writ proceeding in the circuit court which seeks an appellate remedy is governed by the Florida Rules of Appellate Procedure.”
Establishes that the civil procedure rules do not apply; appellate procedure rules govern the motion for rehearing deadline.
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Join FLexlaw to unlock all legal intelligenceMichael Newell, an inmate, was the subject of a DOC disciplinary action. After his administrative appeal was denied, he filed a petition for writ of m…
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PER CURIAM.
Respondent moves to dismiss this petition for writ of certiorari arguing that petitioner failed to timely invoke this court’s jurisdiction.
Petitioner, an inmate, was the subject of a Department of Corrections (DOC) disciplinary action. His administrative appeal was denied by DOC and he filed a petition for writ of mandamus in the circuit court seeking review. The circuit court denied the petition for writ of mandamus by an amended final order which was rendered on August 14, 2001. Petitioner served a motion for rehearing or clarification on August 29, 2001. On September 17, 2001, the circuit court issued an order denying rehearing. Petitioner filed his petition for writ of certiorari in this court on October 4, 2001.
Respondent’s motion to dismiss asserts that the August 29, 2001, motion for rehearing was not served by petitioner within 10 days of the rendition of the August 14, 2001, amended final order as required by Florida Rule of Civil Procedure 1.530(b). Respondent argues that because the motion was untimely under rule 1.530(b), it did not suspend rendition of the amended final order and thus did not extend the time for filing the petition for writ of certiorari. Luttrell v. Florida Parole Commission, 578 So. 2d 11 (Fla. 1st DCA 1991). This court’s certiorari jurisdiction must be invoked within 30 days of rendition of the order to be reviewed. See Fla. R.App. P. 9.100(c)(1); see also Ashley v. Moore, 742 So. 2d 533 (Fla. 1st DCA 1999).
The motion to dismiss is denied. An extraordinary writ proceeding in the circuit court which seeks an appellate remedy is governed by the Florida Rules of Appellate Procedure. See Fla. R.App. P. 9.010 and 9.030(c)(3); see also Sheley v. Florida Parole Commission, 703 So. 2d 1202 (Fla. 1st DCA 1997), approved, 720 So. 2d 216 (Fla.1998)(inmate mandamus proceeding in the circuit court seeking review of final administrative action is in the nature of an appellate remedy). Florida Rule of Appellate Procedure 9.330(a) provides for the filing of a motion for rehearing within 15 days of rendition of the order to which it is directed. Because petitioner is an inmate, the date of service of a pleading is the date of filing under the mailbox rule announced in Haag v. State, 591 So. 2d 614 (Fla.1992). See Thompson v. State, 761 So. 2d 324 (Fla.2000); Fla. R.App. P. 9.420(a)(2). Thus, the August 29, 2001, motion for rehearing was timely under rule 9.330(a) and postponed rendition of the circuit court’s August 14, 2001, amended final order. Inasmuch as the original petition was filed within 30 days following rendition of the order denying rehearing, the petition for writ of certiorari was timely filed.
MOTION DENIED.
ERVIN, WOLF and BROWNING, JJ., concur.
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Brown v. Warden John Doe Perrine, 855 So. 2d 157 (Fla. 1st DCA 2003)…g to compel the appellee, in his official capacity, to perform a legal duty. Because the petition did not seek review of agency action, the civil rules of procedure, rather than the appellate rules of procedure were controlling. Cf. Newell v. Moore, 826 So. 2d 1033 (Fla. 1st DCA 2002). Under these rules, the appellant’s motion for rehearing was not timely, therefore, it did not delay rendition of the order on appeal. See Fla. R.App. P. 9.020(h). All pending motions are denied as moot. AFFIRMED. BENTON, PAD…
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Armour v. Fla. Parole Comm'n, 963 So. 2d 305 (Fla. 1st DCA 2007)…WOLF, PADOVANO, and ROBERTS, JJ., concur. . The petition for writ of certiorari was timely, because his motion for rehearing below was timely under the appellate rules and thus tolled the time for filing his notice of appeal. See Newell v. Moore, 826 So. 2d 1033 (Fla. 1st DCA 2002). . The report recounted the facts of Armour’s murder conviction in 1976, six disciplinary reports he received between 1978 and 1998, and five disciplinary reports he received while he was imprisoned in Nevada and Oregon between…
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Lovette v. McNEIL, 8 So. 3d 411 (Fla. 1st DCA 2009)…d to address the claims raised in his amended petition for writ of mandamus. We agree. The Florida Rules of Appellate Procedure are applicable to extraordinary writ proceedings involving an appellate remedy in the circuit court. See Newell v. Moore, 826 So. 2d 1033, 1033 (Fla. 1st DCA 2002); but see Surratt v. Freeman, 924 So. 2d 905 (Fla. 1st DCA 2006) (holding that an extraordinary writ proceeding that did not seek review by quasi-judicial administrative action was governed by the Florida Rules of Civil Proc…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sheley v. Fla. Parole Comm'n, 720 So. 2d 216 (Fla. 1998)
- Sheley v. Fla. Parole Comm'n, 703 So. 2d 1202 (Fla. 1st DCA 1997)
- State v. Thurston McCLAIN, 591 So. 2d 614 (Fla. 1992)
- Haag v. State, 591 So. 2d 614 (Fla. 1992)
- Thompson v. State, 761 So. 2d 324 (Fla. 2000)
- Walker v. State, 742 So. 2d 533 (Fla. 3d DCA 1999)
- Goodman v. State, 578 So. 2d 11 (Fla. 1st DCA 1991)