JEFFREY A. MACPHERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jeffrey MacPherson appeals from a trial court's denial of his post-conviction relief motion filed under Florida Rule of Criminal Procedure 3.800(a). The appellate court dismissed the appeal as untimely because the notice of appeal was filed more than thirty days after the trial court's initial denial, despite being within thirty days of a denial of a motion for rehearing that does not toll the appellate timeline under Rule 3.800(a).
The appeal is dismissed as untimely. A motion for rehearing in a Rule 3.800(a) proceeding does not toll the time for filing a notice of appeal, and therefore an untimely filing of a notice of appeal more than thirty days after the initial denial deprives the appellate court of jurisdiction, regardless of whether the notice was filed within thirty days of a subsequent rehearing denial.
[1] A motion for rehearing does not toll the time for filing a notice of appeal in proceedings under Florida Rule of Criminal Procedure 3.800(a).
[2] An untimely filing of a notice of appeal deprives an appellate court of jurisdiction.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“An untimely filing of a notice of appeal deprives this court of jurisdiction. It is the ultimate and most fatal of appellate errors.”
Establishes the severe jurisdictional consequence of filing a notice of appeal outside the required timeframe.
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Join FLexlaw to unlock all legal intelligenceMacPherson filed a motion for post-conviction relief under Rule 3.800(a), which was summarily denied by the trial court. He then filed a motion for re…
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SHARP, W„ J.
Jeffrey A. MacPherson appeals from the trial court’s order which summarily denied his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), seeking post-conviction relief. With reluctance, we dismiss his appeal as being untimely, because although his notice of appeal was filed within thirty days of the trial court’s denial of his motion for rehearing, his notice of appeal was filed more than thirty days after the trial court’s initial denial. An untimely filing of a notice of appeal deprives this court of jurisdiction. It is the ultimate and most fatal of appellate errors.
“With reluctance” refers to the fact that this court has repeatedly warned, in such cases as this, that unlike the proceedings involving motions filed pursuant to rule 3.850 seeking post-conviction relief, there is no provision in rule 3.800(a) “authorizing” a motion for rehearing and thus it follows, motions for rehearing in rule 3.800 proceedings do not toll the time for filing a notice of appeal. See, e.g., Mathis v. State, 720 So. 2d 1116 (Fla. 5th DCA 1998); Gaylord v. State, 678 So. 2d 481 (Fla. 5th DCA 1996); Simmons v. State, 657 So. 2d 1283 (Fla. 5th DCA 1995); Kosek v. State, 640 So. 2d 1127 (Fla. 5th DCA), rev. dismissed, 648 So. 2d 723 (Fla.1994). Yet, this same mistake continues to be made primarily by convicted defendants acting pro se. In our view, the discrepancy in how motions for rehearing are treated in the two rules governing collateral relief after conviction makes little sense, and as illustrated by this case, it is a trap for the unwary. Is it a necessary trap? Only the rule makers can answer that question, and until a change is made, this trap will continue to' exist.
DISMISSED.
PLEUS and TORPY, JJ., concur.
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Cited By
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Harris v. State, 911 So. 2d 221 (Fla. 2d DCA 2005)…edings. See, e.g., Haliburton v. State, 842 So. 2d 950 (Fla. 4th DCA [*225] 2003); Turner v. State, 651 So. 2d 758 (Fla. 1st DCA 1995). Judge Sharp repeatedly suggested an amendment to rule 3.800(a) to eliminate this “trap.” See MacPherson v. State, 843 So. 2d 354 (Fla. 5th DCA 2003); Mathis v. State, 720 So. 2d 1116 (Fla. 5th DCA 1998). The rule was finally amended to permit motions for rehearing, effective January 1, 2005. See Amendments to the Florida Rules of Criminal Procedure, 886 So. 2d 197, 199-200 (F…
Authorities Cited
- Kosek v. State, 640 So. 2d 1127 (Fla. 5th DCA 1994)
- Taylor v. State, 640 So. 2d 1127 (Fla. 1st DCA 1994)
- Letarius Mathis v. State, 720 So. 2d 1116 (Fla. 5th DCA 1998)
- Nagy v. State, 657 So. 2d 1283 (Fla. 5th DCA 1995)
- Gaylord v. State, 678 So. 2d 481 (Fla. 5th DCA 1996)